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ESSAYS  AND  ADDRESSES 


Photoi;kaph   CoI'VKIIJHT, 
J.  K.  PiKDY  A-  Co.,  Boston 


ESSAYS 
AND  ADDRESSES 


BY 


EDWIN   BURRITT  SMITH 


^] 


CHICAGO 
A.  C.  McCLURG  &  CO. 

1909 


Copyright 

By  EMMA  DAUMAN  SMITH 

1909 

Published  May  15, 1909 


R.  R.  DONNELLEY  &  SONS  COMPANY 
CHICAGO 


TO 
Cnrtia  anb  (StiB  i^mitb 

THIS  MEMORIAL  OF  THEIR  FATHER 

IS  AFFECTIONATELY 

DEDICATED 


PREFACE 

rpHE  editors  of  this  book  believe  that  the  trenchant 
words  of  Edwin  Burritt  Smith  in  support  of  the  great 
causes  which  were  dear  to  him,  deserve  to  be  preserved  in 
this  permanent  form.  In  the  development  of  the  present 
marked  interest  in  civic  affairs,  Mr.  Smith  was  a  pioneer 
whose  influence  was  far-reaching.  His  lifelong  study  of 
municipal  government,  his  earnest  thought  about  the 
problems  of  the  nation,  his  intimate  knowledge  of  stirring 
passages  in  the  history  of  Chicago  and  Illinois,  above  all 
his  firm  grip  upon  abiding  principles,  give  to  these  papers 
enduring  value.  Nowhere  have  these  principles  been  for- 
mulated more  clearly  or  more  forcibly;  never  has  their 
application  to  the  complex  relations  of  government  been 
set  forth  with  greater  discernment. 

Though  written  at  different  times  and  prepared  for 
widely  varying  audiences,  these  papers  supplement  and 
support  one  another,  and  taken  together  they  form  a  con- 
sistent whole.  They  make  a  fitting  memorial  of  a  singu- 
larly self-sacrificing,  courageous,  and  public-spirited  man. 
In  some  cases  passages  have  been  omitted  that  repeat 
ideas  expressed  elsewhere  in  the  book.  There  has  been 
no  other  editorial  revision. 

George  Laban  Paddock 
Albert  Harris  Tolman 
Frederick  William  Gookin 

Editors. 
April  20,  1909. 


CONTENTS 


Edwin    Burritt   Smith 
Laban  Paddock 


An    Appreciation.      By    George 


XI 


CHICAGO  AND  ILLINOIS 
The  Municipal  Outlook   .... 
The  Municipal  Voters'  League  of  Chicago 
Council  Reform  in  Chicago       ... 
The  Civil  Service  Situation 
Street  Railway  Legislation  in  Illinois 


3 

31 
48 
70 


MUNICIPAL  GOVERNMENT 
The  Recovery  of  Representative  Government  ...        95 
Municipal  Franchises       .  .  .  .  .  .  .108 

Municipal  Self-Government  :  The  Council  and  Mayor         .      128 
Municipal  Self-Government     .  .  .  .  .  .143 


THE  NATION 

American  Sovereignty      .  .  .  .  .  .  .153 

At  the  Parting  of  the  Ways:  A  Study  in  International 

Policy 167 

National  Self-Interest   .  .  .  .  .  .  .194 

American  Ideals      ........     201 


CONTENTS-CoTifmwed 


ANTI-IMPERIALISM 

Constitutional  Government  Imperiled 
Liberty  or  Despotism        .... 
Republic  or  Empire  .... 

The  Constitution  and  Inequality  of  Rights 
Shall  the  United  States  Have  Colonies? 


219 
238 
246 
262 
279 


MISCELLANEOUS   PAPERS 

The  Clergyman  as  a  Public  Leader 
Timothy  Smith,  Pioneer  .... 

Trusts:     Their  Legal  Status  .... 
"The  Confused  West"  :  A  Literary  Forecast 


289 
310 
333 
360 


EDWIN  BURRITT  SMITH 

AN  APPRECIATION 

T^  DWIN  BURRITT  SMITH  was  born  in  Spartans- 
burg,  Pennsylvania,  January  18,  1854.  The  circum- 
stances of  his  early  years  are  set  forth  by  himself  in  the 
paper  "Timothy  Smith,  Pioneer,"  contained  in  the  pres- 
ent volume, — a  relation  of  leading  incidents  in  the  life  of 
his  paternal  grandfather. 

In  a  quite  obvious  sense  both  grandfather  and  grandson 
were  pioneers.  Each  was  gifted  by  nature  with  great  cour- 
age and  inflexible  perseverance.  Each  after  his  own  meth- 
od, in  his  own  day  and  generation,  trained  himself  to 
move  in  advance, — to  move  with  the  few,  with  the  many, 
or  alone.  Each  was  able  and  willing  to  observ  e  and  report 
to  his  fellow  men  from  heights  above  the  level  of  ordinary 
experience;  and  each  to  the  best  of  his  ability  performed 
that  service  to  the  end  of  his  life. 

Left  an  orphan  at  the  age  of  five,  Mr.  Smith  was  taken 
by  his  grandfather,  in  the  following  year,  to  a  farm  near 
Cerro  Gordo,  in  Piatt  County,  Illinois,  where  the  indom- 
itable old  man  passed  his  declining  years  until  his  death, 
which  occurred  in  the  Spring  of  1865.  His  son  Charles  — 
Edwin  Burritt's  uncle — having  died  in  1864,  the  lad  was 
now  thrown  very  much  upon  his  own  resources. 

After  1865  until  he  was  eighteen,  he  worked  during  the 
harvest  seasons  for  different  farmers  in  the  neighborhood. 
This  was  no  light  occupation  but  heavy  outdoor  work, 
sometimes  with  responsibilities  of  management.    Even  at 

xi 


EDWIN  BURRITT  SMITH: 

that  early  day  it  was  his  habit  not  to  decline  responsibility. 
It  is  said  of  him  as  a  boy  that  he  was  studious  and  consider- 
ate of  others ;  never  greatly  interested  in  the  sports  of  boy- 
hood ;  liking  for  recreation  to  read  rather  than  to  play.  At 
intervals  in  those  years  of  stress,  in  winters  when  harvest 
work  and  its  wages  were  not  to  be  had,  he  was  heading  the 
bright  pupils  of  his  own  age  in  the  free  schools  of  Cerro 
Gordo.  It  is  said  of  him  that  he  seemed  to  feel  a  sense 
of  leadership,  and  an  impulse  to  help  others.  And  yet  in 
those  early  days  of  routine  in  school  and  field  work  there 
came  a  critical  moment — a  turning  point — when  as  has 
happened  to  other  bright  boys  in  like  trials,  help  and  guid- 
ance came  to  him  from  the  sympathy  of  an  observant 
friend.  Such  a  friend  was  P.  H.  Harris,  principal  of  the 
public  school  at  Cerro  Gordo.  This  gentleman,  attracted 
by  the  ability  and  diligence  of  his  pupil,  directed  his 
studies,  lent  him  the  right  books,  and  encouraged  him  to 
aspire  to  higher  discipline  beyond.  Perhaps  that  encour- 
agement was  the  cause  of  the  pupil's  determination  to 
enroll  himself  at  Oberlin  College  upon  closing  his  studies 
at  Cerro  Gordo. 

Leaving  Cerro  Gordo  Mr.  Smith  proceeded  to  Oberlin 
College  in  1874  and  there  took  some  special  courses  in  that 
year  and  in  1875.  Later  in  1875  he  taught  in  the  public 
schools  of  Spartansburg.  In  September,  1876,  he  had  be- 
come principal  of  the  high  school  at  that  place ;  and  in  that 
office  he  remained  until  his  removal  to  Chicago.  By  De- 
cember, 1878,  he  had  established  himself  in  Chicago  as  a 
regular  student  in  the  Union  College  of  Law,  now  the  Law 
School  of  the  Northwestern  University.    Of  his  early  stu- 

xii 


AN   APPRECIATION 

dent  experiences  in  Chicago  he  writes:  "I  get  up  at  6:45 
A.  M.  and  read,  recite,  and  teach  in  all  from  fourteen  to 
fifteen  hours  a  day."  The  teaching  was  in  Commercial 
Law  at  one  or  two  business  colleges.  In  another  letter 
written  early  in  February,  1879,  he  says:  "I  am  doing 
a  great  deal  of  reading  in  the  United  States  Supreme 
Court  Reports.  It  is  not  in  the  course,  but  I  am  interested 
in  knowing  all  about  a  question  of  great  importance,  and 
am  going  through  it.  I  have  read,  since  the  middle  of 
December,  nearly  one  hundred  decided  cases,  covering 
nearly  one  thousand  pages  on  this  single  subject.  There 
is  nothing  like  having  a  few  mastered  subjects  behind,  if 
one  wishes  to  go  through  a  portion  of  the  many  ahead." 

Mr.  Smith  was  graduated  at  the  Union  College  of  Law 
in  1879,  with  the  degree  of  Bachelor  of  Law.  He  now  de- 
termined to  apply  the  savings  of  his  Chicago  work,  some 
hundreds  of  dollars,  to  a  post-graduate  course  at  the  Yale 
Law  School.  From  Philadelphia  on  his  way  East,  Sep- 
tember 30,  1879,  he  wrote  to  a  relative:  "I  am  on  my 
way  to  take  the  post-graduate  course  at  the  law  depart- 
ment of  Yale  College.  I  wanted  to  do  it  all  the  time,  but 
until  recently  did  not  think  I  could  do  so.  I  am  sorry  that 
this  prevents  my  visiting  you  this  Fall.  Now,  I  will  not 
be  able  to  see  you  until  some  time  next  Summer,  when  I 
am  able  to  return  to  Chicago,  to  go  into  James  L.  High's 
office.  What  time  I  can  get  from  my  work  I  am  to  spend 
with  the  books.  I  can  easily  make  expenses,  which  will  be 
five  hundred  dollars  for  the  course.  My  year  there  and 
the  Yale  degree  will  be  worth  more  than  that  to  me.  The 
fact  that  I  have  not  a  complete  college  course  makes  me 

xiii 


EDWIN  BURRITT  SMITH: 

anxious  to  make  my  legal  education  as  thorough  as  possi- 
ble. .  .  .  And  here  I  will  say  for  your  sole  benefit 
that  I  am  more  and  more  impressed  with  the  feeling  that 
I  must  prepare  myself  to  bear  higher  responsibilities  in 
my  profession  than  come  to  most  of  its  members.  It  may 
be  fancy,  but  I  feel  that  an  overruling  Providence  has  had 
much  to  do  in  pointing  out  my  course,  and  opening  up  the 
way  thus  far.  At  any  rate,  I  feel  that  I  must  do  all  I  can 
and  leave  the  end  to  a  higher  power.  I  think  I  will  be 
satisfied,  if  after  doing  my  best,  my  success  is  a  moderate 
one;  but  a  moderate  success  without  great  effort  would 
lead  me  to  blame  myself  for  not  having  made  the  effort." 

At  New  Haven  in  October,  1879,  he  says  in  another 
family  letter:  "I  will  return  to  Chicago  next  Fall  with  a 
better  legal  education  than  ninety-nine  in  a  hundred  have 
to  start  with.  It  will  be  worth  a  thousand  dollars  to  me 
to  hold  the  M.  L.  degree  of  Yale,  even  if  I  know  no  more 
for  it,  but  I  will  know  more. 

"The  work  is  of  the  most  thorough,  practical,  and  inter- 
esting kind.  Some  days  I  have  to  read  over  one  hundred 
pages.  I  recite  to  five  professors,  several  of  them  very 
eminent  men.  In  the  post-graduate  course  there  are  few 
of  us,  and  we  enjoy  the  advantage  of  having  the  profes- 
sors' personal  instruction;  mostly  in  their  own  private 
studies  at  their  houses.  They  lend  us  their  books,  and  we 
are  a  privileged  class  in  the  school.  We  have  splendid 
library  facilities.  I  can  have  a  dozen  books  from  the  vari- 
ous libraries  all  the  time.  So,  as  Tom  Sawyer  says  about 
Sunday  school,  'I  am  just  wallowing  in  books.'" 

At  the  close  of  his  post-graduate  course  at  Yale,  in  1880, 

xiv 


AN  APPRECIATION 

Mr.  Smith  took  the  degree  of  Master  of  Laws,  and  re- 
turned to  Illinois.  He  was  admitted  to  the  bar  of  that 
State  by  the  Supreme  Court  in  1881;  and  at  once  began 
practice  in  Chicago.  During  large  parts  of  each  of  the 
years  1883  to  1887  inclusive,  he  was  engaged  in  editorial 
work  for  a  large  and  well  established  law  publishing  house 
in  Rochester,  upon  annotated  editions  of  the  New  York 
Common  Law  and  United  States  Supreme  Court  Re- 
ports. In  1887-1894  he  was  the  official  reporter  of  the 
Appellate  Court  of  Illinois,  First  District.  His  work 
appears  in  Volumes  21-47  of  the  Reports  of  that  Court. 
Beside  these  important  avocations  he  accomplished  much 
professional  work  in  general  law  practice.  In  1888,  1889, 
1890,  Mr.  Smith  was  a  law  partner  of  Mr.  Thomas  Dent, 
a  practitioner  of  large  experience  and  very  high  standing 
at  the  Chicago  bar. 

One  of  Mr.  Smith's  many  fields  of  activity,  was  the 
Armour  Mission  Sunday  School,  established  by  Plymouth 
Church  on  Armour  avenue.  He  was  its  superintendent 
from  the  early  part  of  1889  to  the  end  of  1893,  when  the 
pressure  of  rapidly  enlarging  duties  elsewhere  required 
him  to  resign  the  office.  A  letter  of  the  President  of 
Armour  Institute  to  him  at  this  time  is  of  interest  here : 

My  Dear  Friend  : 

The  letter  you  have  sent  to  Mr.  Armour,  in  connection 
with  the  one  which  you  have  kindly  sent  to  me,  gives  me 
only  the  slightest  opportunity  to  express  to  you  the  grati- 
tude of  Armour  Mission  and  Institute,  and  suggests  to  me 
how  many  hearts  and  minds  who  have  already  gone  out 
from  us  into  the  world's  work  would  love  to  unite  with  us 
in  expressing  our  thankfulness  to  you. 

XV 


EDWIN  BURRITT  SMITH: 

I  cannot  look  upon  your  work  here  at  Armour  Mission, 
as  I  sit  to-day  in  the  large  building  of  Armour  Institute, 
and  look  forward  with  so  much  anxiety  and  pride  into  the 
future,  without  being  more  than  ever  sure  that  your  faith- 
ful hand  and  earnest  heart  have  worked  mightily  toward 
the  shaping  of  these  supreme  possibilities.  Just  to-day,  we 
received  a  telegram  from  San  Francisco  asking  us  for  all 
printed  matter  that  might  help  toward  the  development 
of  a  similar  institution  in  that  city ;  and  as  I  went  through 
the  large  accumulation  of  material  from  which  the  lines 
of  this  enterprise  were  chosen,  I  found  that  the  letters  and 
documents  most  referred  to,  and  most  significant  for  our 
use,  bore  your  beloved  name,  and  are  preserved  among 
my  guiding  influences.  Only  I,  myself,  can  ever  know  how 
certainly  this  Institute  is  the  child  of  Armour  Mission,  and 
how  surely  that  parentage  was  made  possible  by  your 
own  devotion  to  high  literary  and  scientific  ideas.  When 
I  think  of  this  community  as  it  was  when  you  came  here 
to  begin  your  work  with  Dr.  HoUister,  and  know  how 
surely  it  is  fortressed  for  education  and  for  righteousness, 
I  often  wonder  if  the  men  who  work  in  the  Mission  can 
understand  how  grand  is  the  success,  and  how  noble  and 
thorough  was  the  plan. 

It  is  useless  to  say,  though  it  is  quite  significant  that 
it  is  true,  that  we  realize  how  much  of  sacrifice  and  care 
you  have  given  to  this  work,  and  how  certainly  nothing  but 
our  gratitude,  the  immeasurable  and  enriched  future  of 
these  children,  and  the  blessing  of  Almighty  God  may 
compensate  you  for  your  work.  Of  the  treasures  in  the 
lives  of  these  young  people  to  which  you  made  such  addi- 
tions, the  future  will  speak.  You  may  be  sure  we  implore 
the  blessings  of  God  upon  you. 

Faithfully  yours, 

F.  W.  GuNSAULtJS. 

In  July,  1894,  Mr.  Smith  was  appointed  to  a  profes- 
sorship in  the  Law  School  of  the  Northwestern  University, 
and  for  several  years  he  gave  regular  courses  of  lectures 
in  that  school  upon  the  law  of  Real  Property.    These  lec- 

xvi 


AN  APPRECIATION 

tures  not  only  established  for  him  a  high  reputation  as  a 
teacher  of  law,  but  secured  for  the  lecturer  the  enduring 
attachment  of  his  students. 

Mr.  Smith  was  a  schoolmaster  who  measured  fully  up 
to  the  standard  which  a  great  English  professor,  John 
Tyndall,  elevated  before  his  students  in  these  words : 

If  there  be  one  profession  in  England  of  paramount 
importance,  I  believe  it  to  be  that  of  the  schoolmaster; 
and  if  there  be  a  position  where  selfishness  and  incompe- 
tence do  most  serious  mischief  by  lowering  the  moral  tone 
and  exciting  irreverence  and  cunning,  where  reverence 
and  noble  truthfulness  ought  to  be  the  feelings  evoked,  it 
is  that  of  the  principal  of  a  school.  For,  no  matter  what 
means  of  culture  may  be  chosen  whether  physical  or 
philological,  success  must  ever  mainly  depend  upon  the 
amount  of  life,  love  and  earnestness  which  the  teacher 
himself  brings  with  him  to  his  vocation. 

Mr.  Smith  was  elected  a  member  of  the  Chicago  Iviter- 
ary  Club  on  March  18,  1889,  and  from  that  date  until  de- 
clining health  compelled  him  to  forego  the  pleasure,  was  a 
frequent  attendant  at  the  meetings  of  the  club.  This  was 
almost  the  only  relaxation  he  allowed  himself.  The  stimu- 
lating intercourse  with  congenial  spirits  that  he  could  al- 
ways count  upon  at  these  meetings  made  him  loth  to  miss 
even  one  of  them ;  and  he,  on  his  part,  contributed  much  to 
the  interest  and  good  fellowship  of  the  Monday  evening 
gatherings.  His  election  to  the  Presidency  of  the  club,  an 
office  held  by  him  during  the  season  of  1901-1902,  he  re- 
garded as  a  high  honor.  It  was  well  deserved,  for  no  other 
member  had  a  warmer  feeling  for  the  club  or  did  more  to 
promote  its  welfare.  The  papers  read  by  him  before  the 
club  were  seven  in  all, 

xvii 


EDWIN  BURRITT  SMITH: 

"The  Negro  as  a  Citizen."    March  31,  1890. 

"American  Sovereignty."     April  27,  1891. 

"George  William  Curtis."    November  21,  1892. 

"At  the  Parting  of  the  Ways:  A  Study  in  National 
Policy."    January  20,  1896. 

"A  Retrospect  of  the  Campaign  and  of  the  Causes 
Which  Led  to  It."    November  9,  1896. 

"Timothy  Smith,  Pioneer:  A  Sketch  of  a  Plain  Man." 
January  23,  1899. 

"The  Confused  West:  A  Literary  Forecast."  (In- 
augural Address  as  President.)     October  7,  1901. 

In  an  address  before  the  Illinois  General  Congrega- 
tional Association  of  Oak  Park  in  May,  1900,  Mr.  Smith 
maintained  the  obligations  of  the  Decalogue  as  binding 
alike  upon  the  nation  and  its  citizens.  On  the  same  occa- 
sion he  said: 


It  is  the  method  of  democracy  to  reject  authority  and 
appeal  to  the  people.  The  task  is  to  bring  the  crowd  to 
the  plane  of  moral  responsibility.  A  crowd  we  are,  and  a 
crowd  we  shall  remain.  Democracy  means  government 
by  the  crowd,  and  the  largest  liberty  of  voluntary  com- 
bination of  its  units  with  lesser  groups  within  the  greater. 
Nothing  short  of  complete  regeneration  of  the  crowd  can 
be  the  goal  of  social  evolution.  The  man  who  would  raise 
the  morals  of  the  crowd  must  sternly  decline  to  participate 
in  its  immoral  actions  even  when  professedly  for  moral 
ends.  ...  If  the  citizens  are  to  observe  moral  laws, 
a  nation,  which  is,  after  all,  but  an  expression  of  their 
ideals,  must  not  be  unmoral.  Morals  spring  from  the  re- 
lations of  man  in  society.  What  is  true  of  one  or  two 
acting  together  in  relation  to  others  is  true  of  the  nation. 
There  is  but  one  moral  law,  and  it  is  of  like  application 
upon  the  crowd  and  its  units. 

xviii 


AN   APPRECIATION 

Over  against  such  convictions  in  the  mind  of  such  a  man 
projects  of  conquest  and  exploitation  of  "inferior  races" 
could  make  no  headway. 

Much  has  been  written  and  spoken  in  recent  times  upon 
the  subject  of  American  world  power,  so-called.  There 
are  at  least  two  kinds  of  American  world  power.  One  is 
shown  in  the  creation  of  overwhelming  naval  and  mili- 
tary forces.  The  other  is  different.  Of  the  latter  it  has 
been  asserted  in  a  public  address  to  his  fellow  citizens  by 
Mr.  William  J.  Bryan: 

For  more  than  a  century  this  nation  has  been  a  world 
power.  For  ten  decades  it  has  been  the  most  potent  in- 
fluence in  the  world.  Not  only  has  it  been  a  world  power, 
but  it  has  done  more  to  affect  the  politics  of  the  human 
race  than  all  the  other  nations  of  the  world  combined. 
Because  our  Declaration  of  Independence  was  promul- 
gated, others  have  been  promulgated ;  because  the  patriots 
of  1776  fought  for  liberty,  others  have  fought  for  it;  be- 
cause our  Constitution  was  adopted,  other  constitutions 
have  been  adopted. 

The  growth  of  the  principle  of  self-government  planted 
on  American  soil  has  been  the  overshadowing  political 
fact  of  the  nineteenth  century.  It  has  made  this  nation 
conspicuous  among  the  nations,  and  given  it  a  place  in 
history  such  as  no  other  nation  has  ever  enjoyed.  Nothing 
has  been  able  to  check  the  onward  march  of  this  idea.  I 
am  not  willing  that  this  nation  shall  cast  aside  the  omni- 
potent weapon  of  truth  to  seize  again  the  weapons  of  phys- 
ical warfare.  I  would  not  exchange  the  glory  of  this 
republic  for  the  glory  of  all  the  empires  that  have  risen 
and  fallen  since  time  began. 

For  Mr.  Smith,  as  for  other  Americans  seeking  Ameri- 
can standards  of  political  duty  and  power,  such  standards 
exist  in  our  Declaration  of  Independence.    In  the  school 

xix 


EDWIN  BURRITT  SMITH: 

of  public  opinion  in  which  he  was  so  convinced  a  disciple 
and  teacher,  that  document  had  long  been  revered  as 
a  sacred  book  wherein  are  inscribed  the  symbols  of  a 
public  religion  —  a  religion  of  human  equality  and 
equity. 

By  convention  after  convention  the  substance  of  that 
paper  has  been  reaffirmed  in  the  organic  law  of  many  of 
our  American  States;  and  at  last  after  great  sacrifice, 
hesitation  and  civil  conflict,  the  spirit  and  effect  of  it 
have  been  written  into  the  Constitution  of  a  reunited 
nation. 

This  busy  man  found  time  for  many  public  activities. 
It  appears  convenient  in  this  place  to  mention,  the  follow- 
ing instances  collectively. 

In  1884  he  was  Secretary  of  an  Independent  Republi- 
can State  Committee,  which  supported  Grover  Cleveland 
for  the  Presidency  under  a  banner  bearing  the  motto, 
somewhat  strange  at  that  early  day:  "Public  office  is  a 
public  trust."  In  1886  he  was  President  of  the  Illinois 
Tariff  Reform  League.  In  the  presidential  campaign  of 
1888  he  again  supported  Mr.  Cleveland,  and  engaged  with 
activity  in  the  work  of  clubs  organized  for  promotion  of 
Civil  Service  Reform  and  Tariff  Reform. 

In  the  campaign  of  1892  he  was  once  more  prominent 
in  support  of  Mr.  Cleveland.  He  also  in  that  year  took 
part  in  Municipal  Reform  movements  in  the  State  of 
Illinois,  and  was  Democratic  candidate  for  Representa- 
tive in  Congress  from  his  Congressional  district.  In 
1895  he  was  a  leader  in  organizing  the  Municipal  Voters' 
League,   and  during  that  and  succeeding  years  took  a 

XX 


AN   APPRECIATION 

prominent  part  in  its  work.  In  1896  he  was  Chairman  of 
the  Illinois  Sound  Money  League  and  a  member  of  the 
National  convention  which  nominated  Messrs.  John  M. 
Palmer  and  Simon  B.  Buckner  upon  what  was  known  as 
the  "Gold  Democratic  Platform";  and  he  served  upon  the 
national  committee  of  that  organization  in  the  campaign. 
He  was  also  active  in  the  Hyde  Park  Protective  Associa- 
tion, a  local  reform  organization. 

He  was  for  many  years  an  honored  and  useful  member 
of  the  American  Bar  Association.  He  served  for  a  con- 
siderable period  as  member  of  the  Illinois  Board  of  Com- 
missioners for  Uniform  State  Legislation,  appointed  by 
the  Governor  of  the  State. 

Mr.  Smith  was  the  efficient  leader  of  the  Anti- 
Imperialist  movement  in  Chicago.  On  October  27,  1898, 
he  spoke  before  the  Sunset  Club  of  this  city  on  the  subject, 
"National  Expansion  Under  the  Constitution."  He 
stoutly  opposed  the  imperialistic  ideas  that  were  already 
finding  expression,  and  asked  the  frank  question : 

"  Shall  we  permit  despotic  power  to  be  set  up  at  Wash- 
ington, there  to  compete  with  delegated  authority  for  final 
supremacy?" 

He  was  the  chairman  of  the  committee  which  arranged 
for  the  first  general  organized  expression  of  anti-imper- 
ialist sentiment  in  Chicago,  the  Liberty  Meeting  held  at 
Central  Music  Hall  on  Sunday  afternoon,  April  30,  1899. 
The  meeting  was  an  inspiring  one.  President  Henry 
Wade  Rogers,  of  Northwestern  University,  was  its  chair- 
man; the  able  address  of  Mr.  Smith  on  that  occasion  is 
presented  in  this  work. 

xxi 


EDWIN  BURRITT  SMITH: 

For  nearly  two  years,  from  1889  to  1901,  he  was  chair- 
man of  the  executive  committee  of  the  American  Anti- 
Imperiahst  League,  which  had  its  main  office  in  Chicago. 
At  the  time  of  his  death  he  was  a  Vice-President  of  the 
present  National  Anti- Imperialist  League,  having  its 
main  office  in  Boston.  The  cause  of  anti-imperialism  was 
an  expression  of  his  most  cherished  pohtical  convictions. 
A  large  number  of  the  papers  in  the  present  collection 
are  expositions  of  that  cause  in  some  of  its  many  points 
of  view. 

Mr.  Smith  was  a  member  of  the  Young  Men's  Chris- 
tian Association  for  over  twenty  years;  he  acted  upon  its 
Chicago  Board  of  Directors  from  1884  until  disabled  by 
his  last  illness,  and  was  a  member  during  that  period  of 
several  important  standing  committees.  In  1888  he  was 
one  of  a  special  committee  empowered  to  revise  the  or- 
ganic law  of  the  Association.  The  work  of  this  committee 
led  the  way  to  general  reorganization  upon  the  present 
metropolitan  plan ;  an  important  reform  followed  by  great 
and  lasting  gains  in  Association  membership.  For  five 
years  he  was  a  member  of  a  committee  of  twenty-one  re- 
presentative business  men  appointed  by  the  International 
Convention  to  "make  a  deliverance  relating  to  the  general 
polity  of  the  Association  in  North  America."  He  was  in 
the  minority  of  that  committee.  He  presented  the  min- 
ority report  and  spoke  in  its  advocacy  before  the  Interna- 
tional Convention  held  at  Buffalo  in  May,  1904.  The 
opening  words  of  his  address  on  that  occasion  appear  be- 
low. They  were  characteristic,  and  stated  what  he  deemed 
the  vital  question  before  the  convention: 

xxii 


AN   APPRECIATION 

Shall  the  independent  and  voluntary  cooperation  of 
the  Associations  give  place  to  a  measure  of  control  by  the 
International  Committee  of  them  and  their  work?  Or  in 
other  words,  shall  the  work  proceed  on  the  basis  of  co- 
operation, or  on  the  basis  of  authority?  The  question  is 
as  old  as  history.  It  has  arisen  in  Church,  in  State,  in 
every  form  of  endeavor  involving  many  men.  That  it 
should  arise  in  this  brotherhood  was  inevitable.  It  should 
be  frankly  presented  and  earnestly  considered  by  this 
convention.  There  is  no  field  for  compromise  between 
the  two  fundamental  views  presented  by  the  reports.  The 
International  Committee  must  continue  to  be  the  servant 
of  the  Associations  or  it  must  be  their  master.  It  can- 
not be  both  their  servant  and  master.  The  two  roles  do 
not  go  together.  Democracy  and  absolutism  are  not 
Siamese  twins. 

In  August,  1903,  upon  the  advice  of  his  physicians, 
Mr.  Smith  left  Chicago  for  a  several  weeks'  vacation  in 
Wisconsin.  In  May,  1904,  as  already  mentioned,  he  was 
actively  present  in  the  International  Convention  of  the 
Young  Men's  Christian  Association  at  Buffalo.  In 
August,  1904,  he  visited  a  dear  friend,  the  Hon.  Carl 
Schurz,  at  his  home  near  Bolton  Landing,  Lake  George, 
remaining  about  a  week  in  that  historic  region.  At  this 
time  Mr.  Schurz  was  engaged  in  writing  his  interesting  and 
authoritative  work  of  history  and  autobiography,  since 
published.  From  Bolton  Landing  Mr.  Smith  went  on  to 
Greensboro,  Vermont,  to  abide  for  a  time  at  the  cottage 
of  his  pastor  and  Chicago  neighbor,  the  Reverend  Fred- 
eric E.  Dewhurst.  At  Pittsfield  he  remained  for  some 
days  with  Mr.  Ernest  Hitchcock,  his  former  editorial  as- 
sociate, and  other  friends,  and  returned  to  Chicago  in  Sep- 
tember,  1904. 

xxiii 


EDWIN  BURRITT  SMITH: 

In  February,  1905,  again  upon  medical  advice,  he  spent 
about  a  month  in  a  sanitarium  at  Battle  Creek,  Michigan. 
In  April  of  that  year,  once  more  upon  medical  advice, 
Mr.  Smith  set  out  from  Chicago  with  a  friend,  intending 
to  make  a  somewhat  extensive  tour  in  New  Mexico,  Ari- 
zona, California,  and  the  Hawaiian  Islands.  Much  had 
been  hoped  for  as  the  result  of  this  experiment.  But  on 
reaching  Los  Angeles  he  found  himself  no  better,  and 
paused  a  few  days  for  further  medical  conferences; 
then  decided  to  return  to  Chicago.  With  the  friend  who 
had  attended  him  on  the  passage  overland,  he  reached 
home  August  1,  1905. 

In  his  last  illness  Mr.  Smith  enjoyed  reading  when 
strength  permitted,  and  at  other  times  he  listened  with 
interest  to  readings  by  friends  at  his  bedside.  Among  the 
volumes  read  from  at  those  times,  beside  periodicals,  were 
Mr.  John  Morley's  Life  of  Mr.  Gladstone,  the  Letters  of 
James  Russell  Lowell,  "Bright  Days  in  Merry  England," 
The  Life  and  Letters  of  Robert  Louis  Stevenson  (Hen- 
ley). He  seemed  especially  attracted  by  the  Samoan  let- 
ters of  Stevenson  and  the  story  of  that  gifted  author's 
last  days  among  the  simple-hearted  islanders  at  Apia.  If 
he  felt  some  parallel,  bodily  or  spiritual,  between  those 
sufferings  and  his  own,  he  made  no  mention,  nor  was  there 
mention  by  others.  In  those  days  of  privation,  calmly  hop- 
ing against  hope,  he  writes  of  himself  to  a  friend  whom  he 
had  met  in  Arizona,  "I  had  a  relapse  in  January,  and  have 
since  been  worse  than  when  I  saw  you.  While  I  am  now 
very  weak,  I  am  beginning  slowly  to  build  up." 

In  another  letter  written  to  Professor  Charles  Eliot 

xxiv 


AN   APPRECIATION 

Norton  March  7,  1906,  he  refers  to  some  of  the  features 
of  his  ease  to  add :  "  The  outlook  has  decidedly  improved. 
While  it  is  idle  to  predict  after  so  long  an  illness  such  as 
mine,  I  have  never  been  more  hopeful  of  a  complete  re- 
covery and  within  a  reasonable  time." 

In  January,  1906,  an  invitation  was  received  by  Mr. 
Smith  from  the  President  of  Harvard  University  to  de- 
liver a  course  of  lectures  in  the  Spring  of  that  year  upon 
the  Edwin  L.  Godkin  foundation,  concerning  a  subject 
within  Mr.  Smith's  field  of  research  and  exposition.  Mr. 
Smith  had  known  Mr.  Godkin  well  during  the  latter's 
directorship  of  the  New  York  "Nation,"  a  period  in  which, 
according  to  the  estimate  of  Mr.  James  Bryce,  that  paper 
had  become  not  only  the  best  weekly  in  America  but  the 
best  in  the  world.  It  was  with  great  regret  that  Mr.  Smith 
at  the  last  moment  decided  that  his  failing  condition  made 
it  necessary  to  decline  the  honor. 

In  the  latter  years  of  Mr.  Smith's  professional  life  there 
had  slowly  emerged  at  divers  times  from  divers  remote 
sources  a  baffling  and  most  intricate  controversy,  or  mass 
of  controversies,  between  the  city  of  Chicago  and  several 
street  railways  or  traction  companies  occupying  for  their 
passenger  traffic  large  portions  of  manj^  city  streets.  The 
facts  and  law  of  the  contention  were  to  ordinary  persons 
utterly  beyond  comprehension.  Apparently  unsolvable, 
this  conflict  had  too  long  occupied  the  attention  of  legis- 
lative and  judicial  magistrates,  National  and  State.  There 
lay  behind  it  a  bulky  literature, — statutes,  ordinances,  law 
suits,  briefs  and  judicial  decisions  said  to  cover  a  period 
of  over  forty  years.     Of  this  traction  controversy  it  has 

XXV 


EDWIN  BURRITT  SMITH: 

been  remarked  by  a  member  of  the  Chicago  Bar,  *  well 
qualified  to  express  an  opinion  on  the  subject,  that  "In 
the  magnitude  of  the  property  rights  affected,  in  its  im- 
portance to  this  community,  and  in  the  significance  of  the 
legal  questions  involved,  it  is  within  the  facts  to  say  that 
the  traction  litigation  is  the  most  important  of  our  genera- 
tion in  this  jurisdiction."  It  was  but  a  civic  affair,  yet 
several  worthy  citizens  fell  upon  that  field  and  there  gave 
their  lives  in  the  line  of  duty.  In  the  minds  of  many  there 
exists  good  reason  to  believe  that  Edwin  Burritt  Smith's 
life  was  among  those  lost  in  the  "traction  cases."  He  was 
employed  as  special  counsel  for  the  committee  of  the  city 
council  on  local  transportation,  the  official  body  in  charge 
of  the  traction  question  in  all  its  forms.  He  performed 
the  exacting  duties  of  that  relation  in  a  state  of  steadily 
failing  strength. 

On  a  Sabbath  day  in  the  Spring  of  1906,  Pastor  Dew- 
hurst  addressed  the  people  of  the  University  Congrega- 
tional Church  upon  the  text:  "He  looked  for  a  city 
which  hath  foundations,  whose  builder  and  maker  is  God." 
Turning  for  a  brief  space  from  Asiatic  tradition  to  our 
own  American  life  the  preacher  paused  to  say  these  words : 

And  at  this  moment  there  rises  up  before  me  the  figure 
of  one  man,  honored  and  beloved  among  us,  whose  face, 
it  may  be,  we  shall  see  no  more  in  mortal  form,  waiting 
for  the  death  messenger  to  come.  He  will  stand  forth  in 
our  memory  in  days  to  come  as  one  of  our  chief  citizens, 
a  man  to  whom  that  great  clean  word  "citizen"  in  a  pre- 

*  Mr.  Horace  S.  Oakley,  in  a  memorial  of  John  Cass  Mathis,  who 
was  associated  with  Mr.  Smith  as  special  counsel  for  the  city  in  this 
litigation. 

xxvi 


AN   APPRECIATION 

eminent  degree  belongs;  a  man  who,  with  the  courage  of 
clear  vision,  has  looked  for  a  city  which  had  foundations, 
built  on  the  granite  of  human  integrity  and  honor;  who, 
in  the  most  literal  sense,  as  I  believe,  has  laid  down  his 
life  in  order  that  you  and  your  children  may  live  among 
civic  conditions,  of  both  the  material  and  the  immaterial 
kind,  which  will  surpass  those  we  possess  to-day.  For 
himself,  it  will  be  once  more  the  story  of  Abraham — the 
life  in  tents — the  vision  unfulfilled  and  incomplete.  For 
the  days  and  the  people  to  come  it  will  be  the  city  which 
hath  foundations — the  dream  embodied,  the  hope  merged 
into  realization. 

Edwin  Burritt  Smith  died  at  his  residence  on  Cornell 
avenue,  Chicago,  in  the  early  morning  of  May  9,  1906. 
He  was  survived  by  his  wife,  Mrs.  Emma  D.  Smith,  and 
by  their  three  children,  two  sons,  Curtis  and  Otis,  and  a 
daughter  Emily. 

The  funeral  services  were  held  at  the  University  Con- 
gregational Church  in  the  presence  of  the  congregation  and 
large  numbers  of  neighbors  and  friends  of  the  family,  on 
Ma}^  12,  1906.  The  interment  took  place  on  the  day 
last  named  at  Rosehill  Cemetery,  Chicago. 

Memorial  services,  very  largely  attended,  were  held  at 
the  University  Church  on  May  20,  1906. 

Rev.  Mr.  Dewhurst  said  at  the  Memorial  service: 

It  would  certainly  be  unbecoming  and  ungracious  for 
us  to  meet  here  in  this  place  this  afternoon  and  not  have  a 
single  word  said  regarding  Mr.  Smith's  relations  to  the 
church.  This  building,  with  its  dignified  and  sturdy  archi- 
tecture, is,  in  a  good  degree,  a  monument  to  his  own  far- 
seeing  judgment. 

The  spirit  and  traditions  and  history  of  the  church  of 
which  this  individual  church  is  a  part,  were  in  accord  with 

xxvii 


EDWIN  BURRITT   SMITH: 

his  own  fundamental  convictions  and  faith  and  life,  and 
his  spirit  and  influence  and  sacrificial  devotion  and  love 
are  in  all  the  air  around  us  and  will  abide  with  us. 

Professor  A.  H.  Tolman-  said  on  the  same  occasion: 

Each  Congregational  church,  as  you  know,  is  a  self- 
governing.  Christian  democracy.  There  is  no  larger 
Congregational  Church,  properly  speaking.  There  is  a 
Congregational  denomination,  made  up  of  Congregational 
churches;  but  each  church  is  responsible  only  to  God  and 
to  the  conscience  of  its  own  members.  This  policy  suited 
Mr.  Smith.  He  believed  in  democracy  as  few  men  believe 
in  it.  A  favorite  remark  to  us  of  our  pastor  is  a  quotation 
from  Guizot,  who  says  that  democracy  crossed  over  into 
Europe  in  the  ship  that  carried  the  Apostle  Paul.  His 
thought  I  take  to  be  that  Paul  so  felt  the  worth  of  the  in- 
dividual, the  true  stature  of  the  free  man  in  Christ  Jesus, 
that  democracy  was  the  only  natural  political  counterpart 
and  expression  of  Christianity.  Democrarj^  and  Chris- 
tianity in  the  world's  final  development  will  show  them- 
selves not  two  thoughts  but  one,  God's  plan  for  man. 

In  the  Christian  democracy  that  has  its  home  in  this 
edifice  Mr.  Smith  was  the  most  distinguished  member. 
His  personal  devotion  to  this  church  was  complete.  His 
thought,  his  interest,  his  planning,  his  counsel,  were  con- 
stant. Into  the  edifice  his  thought  has  gone,  into  all  our 
work  his  thought  went. 

This  church  was  for  Mr.  Smith  a  starting  place,  a  coun- 
cil, a  point  of  departure,  a  school  from  which  he  went  out 
to  do  the  work  of  the  Lord.  He  was  not  devoted  primarily 
to  the  church.  He  was  a  Christian,  but  not,  I  should  say, 
if  I  may  put  it  that  way,  a  churchman.  He  was  devoted 
primarily  to  the  service  of  his  Lord,  to  the  betterment  of 
men,  to  the  regeneration  of  this  city.  And  when  he  went 
from  this  church  into  these  larger  interests,  he  was  still  in 
vital  relation  to  the  church.  His  work  for  the  Municipal 
Voters'  League,  for  example,  is  not  to  be  separated  from 
his  relation  to  the  church.  He  was  doing  the  sermon.  As 
I  look  at  it  perhaps  that  work  is  his  most  important  ser- 

xxviii 


AN  APPRECIATION 

vice  for  the  city.  It  is  a  beautiful  example  of  the  truth 
that  is  illustrated  in  his  life-philosophy. 

The  people  of  this  city  want  disinterested,  intelligent, 
open,  above-board  leadership,  and  that  is  all  they  want. 
They  want  more  democracy  and  not  less,  and  the  city  was 
redeemed  along  these  lines.  And  if  the  American  city  is 
to  be,  as  I  believe  it  is,  the  hope  of  American  democracy, 
then  some  epoch-making  work  was  done  here  by  him  and 
his  associates. 

And  so,  once  more,  his  work  for  Hull  House,  for  the 
Chicago  Commons,  and  for  the  Y.  M.  C.  A.,  is  not  to  be 
separated  from  his  relation  to  the  church.  He  was  again 
doing  the  sermon.  He  was  especially  interested  in  the 
work  of  Miss  Jane  Addams,  and  from  the  beginning  he 
was  the  unpaid  legal  adviser  of  Hull  House. 

The  following  letters  from  Prof.  Graham  Taylor,  Prof. 
Charles  Eliot  Norton,  and  Hon.  Moorfield  Storey  were 
among  those  read  at  the  INIemorial  Service. 

Chicago  Commons,  May  18th. 

Those  of  us  who  for  the  past  ten  years  or  more  have 
worked  with  Edwin  Burritt  Smith  for  the  promotion  of 
public  interests  were  most  deeply  impressed  \\ath  the  spirit 
of  his  manhood.  For,  more  than  upon  anything  else,  his 
whole  life  centered  down  upon  the  welfare  of  the  common- 
wealth, which  called  forth  all  his  energies  into  their  most 
virile  expression.  Above  all  the  strong  qualities  of  mind 
and  heart,  beyond  every  quest  of  his  ardent  soul,  or  any 
achievement  of  his  tireless  devotion,  one  trait  rose  supreme. 
It  was  his  imperturbable,  almost  unconscious  indifference 
to  the  result  which  his  attitude  upon  public  issues  might 
have  upon  his  personal  reputation  or  his  professional  in- 
terests. 

His  convictions  were  his  own.  They  came  nearest  to 
being  the  man  himself.  They  were  the  most  sacred  of  his 
possessions,  as  far  apart  from  the  rating  of  commercial 
assets  as  the  attitude  of  prayer  in  the  shrine  of  worship. 
Once  convinced  of  the  righteousness  and  public  value  of 

xxix 


EDWIN  BURRITT  SMITH: 

an  issue,  it  mattered  not  to  him  how  weak  or  strong  its 
backing  was,  how  popular  or  unpopular  its  following 
might  be.  In  his  vision  each  such  struggle  as  that  for 
the  civil  service  law,  for  honesty  and  capacity  in  city  gov- 
ernment, for  the  municipal  control  of  public  utilities,  for 
the  peaceful  progress  of  the  Nation  in  the  spirit  of  its  con- 
stitution and  history,  and  for  the  social  unification  of  our 
cosmopolitan  people  by  social  settlements  and  other  cen- 
ters of  human  equality,  was  only  part  of  the  one  great 
cause  of  a  sane,  safe,  and  progressive  democracy.  To  that 
greatest  cause  Mr.  Smith  devoted  the  fine  abilities  and 
tremendous  energies  that  never  seemed  to  count  the  per- 
sonal cost  of  his  public  service.  A  brave  man  and  true 
has  fallen  at  our  side.  But  while  his  closest  colleagues  in 
all  these  movements  deeplj^  feel  the  loss  of  his  counsel 
and  cooperation,  yet  the  steady  and  rapid  increase  of 
adherents  due  to  such  ideals  of  citizenship  as  he  helped 
to  inspire  happily  leaves  the  great  cause  less  and  less 
dependent  upon  any  one  man,  or  any  few  men.  Thus 
again  are  we  taught  to  find  our  life  by  losing  it,  to  suc- 
ceed by  making  ourselves  less  essential  to  the  success  of 
all  that  we  hold  dear. 

Graham  Taylor. 


Shady  Hill,  Cambridge,  Mass.,  May  17,  1906. 
My  Dear  Sir: 

I  thank  you  for  your  letter  of  a  week  since.  I  share 
with  you  in  sorrow  for  the  death  of  Mr.  Burritt  Smith. 
His  last  letter  to  me,  written  not  many  weeks  ago,  had 
given  me  good  reason  for  hope  for  his  complete  restoration 
to  health.  I  counted  upon  many  years  of  active  and  useful 
life  for  him. 

My  acquaintance  with  Mr.  Smith  began  but  a  com- 
paratively few  years  ago,  but  it  ripened  quickly  into 
friendship.  He  visited  me  twice  at  my  summer  home 
in  Ashfield.  In  our  long  conversations,  I  was  impressed 
by  the  perfect  coordination  of  his  vigorous  intelligence, 
with  his  strong  moral  convictions  and  clear  moral  per- 

XXX 


AN   APPRECIATION 

captions.  He  was,  like  most  Americans,  an  idealist, 
but  his  ideals  were  higher  than  those  of  the  crowd, 
and  his  guide  in  the  pursuit  of  them  was  not  a  blind  en- 
thusiasm, but  an  open-eyed  good-sense.  His  character 
was  all  of  a  piece, — simple,  sincere,  steadfast.  It  was 
his  nature  to  obey  the  call  of  duty,  and  to  follow  its  path. 
This  was  the  independence,  this  was  the  courage  for  which 
he  was  praised  or  blamed  according  to  the  nature  of  those 
who  judged  him. 

He  was  an  eminent  example  of  the  good  citizen,  and 
in  his  death  not  only  Chicago  but  the  whole  country  suf- 
fers a  great  loss. 

But  I  am  not  writing  his  eulogy,  and  I  say  these 
general  words  concerning  him,  because  I  find  it  hard  to 
express  the  more  intimate  sentiment  of  personal  regret. 
Will  you  be  so  kind  as  to  express  to  Mrs.  Smith  my  deep, 
tender,  and  respectful  sympathy?  She  knows  that  I  shall 
hold  the  memory  of  her  husband  in  honor  and  affection  so 
long  as  life  may  last. 

Believe  me,  gratefully  and  sincerely  yours, 

Charles  Eliot  Norton. 


Boston,  May  16,  1906. 
My  Dear  Mr.  Dewhurst  : 

I  am  very  sorry  that  it  is  out  of  my  power  to  attend  the 
services  in  memory  of  my  friend  Edwin  Burritt  Smith. 
His  death  is  a  calamity.  Few  men  of  my  time  have 
brought  to  the  service  of  the  public,  such  intelligence,  such 
ability,  such  unselfish  devotion,  such  untiring  zeal.  Un- 
popularity had  no  terrors  for  him,  preferment  no  tempta- 
tions, and  when  he  decided  that  a  certain  course  was  right 
he  brought  to  its  support  all  his  powers  without  thought 
of  personal  consequences.  He  rendered  conspicuous 
service  to  his  city,  to  his  State,  and  to  his  country  without 
asking  any  recognition  for  himself,  and  though  at  various 
crises  I  was  in  close  relation  with  him,  I  never  knew  him 
to  suggest  the  chance  of  political  preferment  or  the  danger 
of  loss  or  defeat  as  a  reason  for  action.     As  Mr.  Schurz 

xxxi 


EDWIN  BURRITT  SMITH: 

once  said  to  me  of  him,  "His  was  a  heart  of  gold."  He 
was  in  the  highest  sense  of  the  word  "an  independent," 
a  brave,  true,  patriotic  man,  and  his  death  leaves  a  void 
which  can  hardly  be  filled. 

The  cause  of  good  government,  the  cause  of  human 
freedom,  the  cause  of  equal  rights,  have  lost  in  him  a 
stanch  supporter,  and  I  have  lost  a  friend  for  whom  I  had 
the  sincerest  respect  and  the  warmest  regard.  May  his 
example  inspire  us  who  remain  to  carry  on  with  increased 
zeal  the  war  against  unjust  privileges  and  oppression  to 
which  he  gave  his  life. 

Very  sincerely, 

MooRFiELD  Storey. 

The  following  are  letters  from  Professor  James  F. 
Colby,  of  Dartmouth  College,  Mr.  Louis  R.  Ehrich,  of 
the  City  of  New  York,  and  Professor  John  H.  Gray,  of 
Northwestern  University,  to  Mrs,  Edwin  Burritt  Smith: 

Dartmouth  College, 

Hanover,  N.  H.,  June  22,  1906. 
Mrs.  Edwin  Burritt  Smith  : 
Dear  Madam: 

Allow  me,  though  a  stranger,  to  express  my  sincere 
sympathy  with  you  as  you  sit  under  the  lengthening 
shadow  of  your  recent  great  loss. 

My  acquaintance  with  your  honored  husband,  begin- 
ning in  New  Haven  as  we  were  embarking  upon  our  pro- 
fessional careers,  soon  ripened  into  strong  friendship  which 
I  am  glad  to  remember  never  has  been  interrupted  during 
all  the  intervening  years.  While  our  intercourse  has  been 
infrequent,  our  occasional  talks  and  walks  during  the 
sessions  of  the  American  Bar  Association  and  political 
conferences,  and  at  Chicago,  and  during  a  delightful  trip 
in  the  White  Mountains  in  1893,  with  the  occasional  inter- 
change of  pamphlets  which  we  have  prepared  on  legal 
and  political  topics,  and  personal  correspondence,  have 
sufficed  to  keep  me  informed  in  respect  to  his  varied  activi- 

xxxii 


AN  APPRECIATION 

ties,  his  constant  intellectual  enlargement,  and  the  nobility 
of  his  manhood. 

It  has  been  a  continuing  marvel  to  me  that  he  could 
give  so  largely  not  only  to  his  profession  but  for  civic 
betterment  and  the  national  welfare.  His  contributions 
to  the  cause  of  legal  reform,  municipal  improvement,  the 
merit  system  for  the  civil  service,  and  what  he  deemed  to 
be  our  wise  policy  with  reference  to  acquisition  of  distant 
territories — collectively  have  been  large,  and  entitle  him 
to  the  respect  and  gratitude  of  all  patriotic  citizens.  When 
to  these  services  there  are  added  those  which  he  devotedly 
rendered  to  the  church  and  to  the  profession  of  his  choice, 
the  record  of  achievement  as  well  as  the  force  of  character 
implied  commands  admiration,  and  makes  his  life  con- 
spicuous among  those  whose  characteristic  is  service  for 
their  fellow  men.  Surely  it  must  be  a  large  consolation 
to  realize  that  his  life  is  not  a  spent  force  but  a  vital  in- 
fluence which  has  helped  upbuild  institutions  which  go  on 
though  men  come  and  go,  and  which  to-day  is  recalled  as 
a  worthy  example  by  many  of  his  countrymen. 

Be  assured  of  my  continuing  remembrance  of  your  hon- 
ored husband  and  a  constant  and  abiding  interest  in  your 
welfare. 

Very  respectfully  yours, 

James  F.  Colby. 


New  York,  September  28,  1906. 
Mrs.  Edwin  Burritt  Smith: 
Dear  Madam: 
No  doubt  you  heard  your  husband  speak  of  me.     In 
any  event,  I  have  enshrined  him  in  my  heart  as  one  to 
whom  I  have  given  my  esteem  and  my  friendship.    When 
the  news  of  his  death  came  to  me  in  Europe — simul- 
taneously with  the  news  of  the  death  of  our  common 
friend,  Carl  Schurz, — it  made  the  world  feel  infinitely 
poorer.    To  you,  above  all,  I  need  not  speak  of  the  shining 
virtues  of  Mr.  Smith.    He  was  an  inspiration  to  all  who 

xxxiii 


EDWIN  BURRITT  SMITH: 

knew  him,  a  genuine  uplifting  force  in  the  world.  You 
may  be  assured  that  you  possess  the  deep  condolence  of 
our  entire  family. 

Yours  very  truly, 

Louis  R.  Ehrich. 


EvANSTON,  111.,  October  2,  1906. 
Dear  Mrs.  Smith: 

I  have  just  returned  to  the  University  after  a  seven 
months'  leave  of  absence.  I  was  on  my  way  to  Europe 
and  out  of  reach  of  mail,  telegraph,  and  newspapers  at  the 
time  of  Mr.  Smith's  death. 

I  cannot  come  back  to  this  community  for  which  he 
did  so  much,  and  take  up  my  work  without  a  word  of  sym- 
pathy to  those  nearest  and  dearest  to  him,  and  a  word  of 
testimony  as  to  the  help  and  inspiration  he  was  to  me,  and 
to  all  other  right-minded  men  who  were  striving  to  accom- 
plish the  work  in  which  he  was  the  acknowledged  leader. 
My  life  will  always  be  the  richer  for  having  come  in  contact 
with  his,  and  the  poorer  that  he  is  no  longer  present  to 
inspire  it. 

With  great  sympathy  and  esteem, 

John  H.  Gray. 

In  the  comparatively  few  years  of  his  professional  life, 
Mr.  Smith  had  grown  into  recognition  at  the  Chicago  bar 
as  a  lawyer  of  high  character  and  great  ability.  He  had 
gained  this  distinction  in  the  most  approved  manner — 
by  presence  as  counsel  in  important  and  actively  contested 
cases  in  courts  of  law  and  equity.  In  1897  he  was  among 
the  counsel  retained  by  Attorney- General  Akin  in  sup- 
port of  the  validity  of  the  present  Illinois  Civil  Service 
Law.  His  selection  as  one  of  the  special  counsel  in  the 
traction  case  has  been  mentioned.  His  friend,  Judge 
Henry  V.  Freeman,  says  of  him:    "In  the  preparation 

xxxiv 


AN  APPRECIATION 

and  presentation  of  causes  before  a  reviewing  court,  he 
understood  and  appreciated  the  importance  of  a  clear 
statement  of  the  vital  facts.  He  possessed  to  an  eminent 
degree  the  capacity  to  discern  the  controlling  points  of  a 
case,  and  the  ability  to  present  them  in  logical  order  and 
arrangement,  to  give  them  cumulative  effect." 

The  death  of  Edwin  Burritt  Smith  closed  a  career  full 
of  the  promise  of  yet  greater  personal  distinction  and 
social  usefulness. 

George  Laban  Paddock. 


XXXV 


CHICAGO  AND  ILLINOIS 


M^ 


ESSAYS  AND  ADDRESSES 


THE  MUNICIPAL  OUTLOOK* 

rpHE  Chicagoan,  wherever  he  registers,  writes  the  name 
of  his  city  with  something  of  the  pride  of  Paul  when, 
in  answer  to  the  inquiry  of  the  chief  captain  whether  he 
was  not  a  certain  Egyptian,  he  repUed:  "I  am  a  Jew,  of 
Tarsus  in  Cilicia,  a  citizen  of  no  mean  city."  Yet,  much 
as  we  glory  in  our  city,  in  her  private  enterprise,  her  pub- 
Uc  spirit,  her  noble  achievements,  her  inviting  future,  we  do 
not  forget  her  shame  and  our  reproach  —  a  municipal 
government  which  is  one  of  the  most  complex,  inefficient, 
and  corrupt  in  the  world. 

A  recent  foreign  visitor,  writing  in  a  London  newspa- 
per, refers  to  Chicago  as  a  "splendid  chaos" — "a  casual 
horde  of  jostling  individuals" — "the  chosen  seat  of  public 
spirit  and  municipal  boodle" — "the  most  amazing  com- 
munity in  the  world."  These  phrases,  though  extravagant, 
indicate  something  of  the  strength  and  weakness  of  our 
great  city.  The  fact  is,  Chicago  is  the  typical  city  of  the 
American  democracy.  She  has  the  youthful  enthusiasm, 
the  restless  energy,  the  adventurous  spirit,  the  unfinished 
effort  of  the  American  people.  Fresh  from  the  great, 
even  if  imperfect,  achievements  of  a  vigorous  youth,  the 
acknowledged  capital  of  an  imperial  domain,  sure  of  her 

*  An  address  at  All  Souls'  Church,  Chicago,  November  19,  1896. 

3 


ESSAYS  AND  ADDRESSES 

grasp  of  unrivalled  opportunities,  Chicago  shares  with  the 
American  people  the  inspiring  anticipations  of  an  exhaust- 
less  continent.  In  her  achievements,  in  her  defects,  in  all 
that  she  is  and  all  that  she  lacks,  Chicago  epitomizes  the 
great  democracy  of  the  New  World.  This  implies  that  she 
lacks  the  historical  inspiration,  the  sense  of  proportion,  the 
self-satisfied  completeness,  the  finish,  the  culture  of  the 
great  cities  of  the  Old  World.  Without  ancestral  voices  to 
lull  her  into  self-satisfied  inactivity,  she  is  spurred  to  resist- 
less effort  by  the  inspiring  voices  of  a  future  in  which 
her  defects  are  to  be  overcome  and  her  splendid  destiny 
realized. 

No  other  people  have  accomplished  so  much  in  so  short 
a  time  as  have  the  people  of  the  United  States.  No  other 
great  people  live  so  little  in  the  past  and  so  much  in  the 
future.  In  this,  Chicago  typifies  America.  No  other  city 
has  made  such  strides.    No  other  great  city  is  so  unfinished. 

The  political  evils  which  the  American  people  suffer  to- 
day mainly  spring  from  their  over-confidence  in  the  in- 
herent force  of  free  institutions.  This  over-confidence  is, 
however,  but  the  natural  result  of  the  feeling  of  relief 
which  came  to  our  race  upon  its  final  achievement  of  free 
government  after  many  generations  of  strife. 

There  is  no  contrast  between  the  conditions  of  me- 
diaeval and  modern  Hfe  more  significant  than  that  touch- 
ing the  relative  security  of  life  and  private  property. 
When  we  look  back  beyond  the  declaration  that  all  men 
are  created  with  certain  inalienable  rights;  that  among 
these  are  life,  liberty,  and  the  pursuit  of  happiness ;  we  find 
a  record  of  ages  of  public  disorder  in  which,  though  the 

4 


THE  MUNICIPAL  OUTLOOK 

king  in  name  ruled,  the  people  in  fact  bore  the  burdens 
of  the  almost  constant  strife  and  war  through  which  civili- 
zation made  its  way  toward  the  general  peace  and  order 
which  our  century  is  the  first  to  enjoy.  Under  the  organi- 
zation of  society  known  as  feudalism,  the  peace  of  rare 
intervals  was  an  incident,  not  an  end.  Then  government 
did  not  exist  to  conserve  the  interests  of  the  governed,  but 
the  people  existed  to  sustain  and  defend  the  government. 
Even  the  land,  which  was  almost  the  only  property,  was 
owned  by  the  king,  and  held  by  his  subjects  upon  condition 
that  they  perform  military  service.  The  duty  of  a  freeman 
was  to  render  knight-ser\ace,  a  service  in  the  field  for  forty 
days  in  each  year,  without  pay  other  than  the  use  of  his 
allotment  of  public  land.  He  obtained  from  the  land  a 
livelihood  for  himself  and  family,  merely  as  an  incident  of 
his  knight-service.  Even  the  mesne  lords,  after  a  compact 
national  organization  had  been  accomplished,  as  in  Eng- 
land by  the  conquest,  held  their  estates  from  the  crown 
as  public  servants  that  they  might  marshal  their  retainers, 
holding  of  the  king  through  them,  to  perform  the  military 
serv'ice  which  it  was  the  burden  of  the  land  to  supply.  Civil 
strife  OA^er  the  succession  to  the  crown  often  made  it  neces- 
sary for  the  mesne  lord  to  choose  between  rival  claimants 
of  authority,  the  penalty  for  a  mistaken  guess  as  to  the 
one  who  would  prevail  being  the  loss  of  his  head  on  Tower 
Hill.  The  land  was  the  basis  of  a  military  government, 
in  which  all  freemen  had  a  share  coupled  with  onerous 
public  duties.  The  land  and  the  people  were  welded 
together  as  the  basis  of  a  compact  and  strong  national 
authority  exercised  by  the  king. 

5 


ESSAYS  AND  ADDRESSES 

The  crude  democracy  of  the  isolated  village  communi- 
ties had  given  way  to  the  powerful  military  monarchy, 
which,  with  almost  despotic  authority,  had  welded  detached 
groups  of  kinsmen  into  the  great  nation  having  a  definite 
territory,  uniform  laws,  and  comparative  freedom  from 
local  disorder.  But,  through  all  this  experience,  necessary 
as  it  then  was,  there  had  survived  in  men's  minds  and 
hearts  the  memory  and  love  of  the  personal  freedom  of 
primitive  days ;  and,  before  national  unity  had  scarce  been 
acliieved,  the  struggle  began  for  a  democracy  which  should 
combine  the  advantages  of  a  wide  national  authority  with 
something  of  the  local  self-government  and  personal 
freedom  of  the  village  community.  Thus  the  evolution 
was  from  the  simple  and  primitive  democracy  of  the 
isolated  group  of  kinsmen,  known  to  us  as  the  village 
community,  through  the  military  despotism  of  the  feudal 
monarchy,  to  the  complex  and  powerful  democracy  of  a 
great  continent  in  which  we  to-day  rejoice.  When  we 
consider  through  what  tremendous  and  prolonged  sacri- 
fices this  evolution  came,  we  shall  not  greatly  wonder  that 
the  result  was  hailed  as  a  final  goal,  and  that  men  thought 
the  time  had  at  last  come  in  which  they  were  free  to  enjoy 
life,  liberty,  and  the  pursuit  of  happiness,  without  serious 
public  cares  or  duties.  The  time  had  indeed  come  in 
which  government  exists  for  the  people,  not  they  for  the 
government.  Upon  this  discovery  and  achievement,  the 
people  rejoiced.  All  men  having  become  rulers,  the  task 
of  government  seemed  light,  and  they  entered  upon  their 
private  pursuits,  leaving  the  conduct  of  their  public  affairs 
to  self-seeking  politicians.     That  the  complex  machinery 

6 


THE  MUNICIPAL   OUTLOOK 

of  popular  government  has,  under  these  conditions,  fairly 
performed  its  functions,  cannot  be  denied.  In  fact,  that 
life  and  opportunity  and  property  have  been  so  secure 
over  an  extended  country,  under  an  administration  of 
democratic  institutions  so  imperfect,  is  itself  conclusive 
of  the  superiority  of  such  institutions. 

But  the  security  of  life  and  private  property,  though 
of  great  value,  is  not  the  end  of  popular  government. 
Indeed,  it  is  but  the  mere  basis  of  a  worthy  national  life. 
Content,  if  they  would  but  furnish  us  such  security  and 
leave  us  alone  to  our  private  pursuits,  we  have  in  America 
left  public  matters  more  and  more  to  the  seekers  and 
holders  of  public  office.  The  mixed  results  of  this  course 
have,  at  last,  become  fully  evident.  Among  these  results 
are  the  splendid  achievements  of  private  enterprise,  the 
degradation  of  the  public  service  to  private  ends,  and 
inefficient  to  corrupt  government.  Under  this  regime 
our  national  and  local  governments,  though  intended  to  act 
independently,  have  been  pooled  to  furnish  spoils  for  the 
active  members  of  the  two  great  national  parties.  It  has 
placed  the  public  authority  in  the  hands  of  officials  who 
are  without  opinions  on  public  questions,  or  who  are  too 
cowardly  to  express  them.  To  such  men  the  end  of  gov- 
ernment is  simply  spoils.  Their  idea  of  a  statesman  is  a 
political  boss  who  distributes  public  appointments,  sells 
nominations,  accepts  bribes,  levies  blackmail,  and  makes 
popular  government  a  sham  and  a  reproach.  This  is 
known  as  the  spoils  system.  It  has  placed  party  organiza- 
tion and  public  authority  in  the  hands  of  parasites,  and 
has  resulted  in  inefficient  National  and   State  adminis- 

7 


ESSAYS  AND  ADDRESSES 

tration  and  the  corruption  and  paralysis  of  municipal 
government. 

Under  this  system,  political  parties,  though  professedly 
organized  to  advance  national  policies,  have  assumed 
control  of  municipal  administration.  This  has  placed  the 
municipal  business  of  every  American  city  at  the  mercy  of 
spoilsmen.  It  has  made  the  city  hall  of  Chicago  an  asylum 
of  party  retainers,  who  live  on  the  public  revenues,  control 
party  management,  and  stand  between  the  people  and 
their  government.  It  culminated  in  Chicago  in  1895  in  a 
common  council  which  was  literally  a  den  of  thieves.  Some 
three-fourths  of  the  members  banded  themselves  together 
to  plunder  the  public  and  blackmail  corporations.  They 
sold  every  public  right  for  which  a  purchaser  could  be 
found,  and  even  organized  a  syndicate,  composed  in  part 
of  some  of  their  own  members,  to  hold  the  General  Electric 
ordinance  until  a  purchaser  should  appear.  All  this  was 
done  as  a  matter  of  course,  and  with  hardly  a  pretence  of 
concealment. 

This  would  be  indeed  a  dark  picture  if  we  should  stop 
here.  But  there  is  something  to  add  to  it.  The  American 
people,  occupied  as  they  were  with  their  private  pursuits, 
long  regarded  any  suggestion  that  they  owe  some  of  their 
best  time  and  effort  to  public  matters,  as  an  attempt  to 
interfere  with  the  sacred  rights  of  private  citizens.  But 
the  growing  disregard  of  public  opinion  by  the  spoilsmen 
finally  produced  its  effect.  Private  citizens  slowly  came 
to  realize  that  even  their  personal  interests  are  endangered, 
that  there  is  a  very  close  relation  between  public  and 
private  morals,  and  that  every  man  owes  something  in  the 

8 


THE  MUNICIPAL  OUTLOOK 

nature  of  knight-service  to  the  public.  This  awakening 
led  to  the  national  civil  service  law,  and  the  gradual  growth 
of  the  conviction  that  the  thorough  reform  of  the  National, 
State,  and  municipal  civil  service  is  a  fundamental  con- 
dition of  even  decent  public  administration.  By  1894  this 
truth  had  taken  deep  root  in  Chicago,  and  private  citizens 
had  become  aroused  by  the  disgrace  and  danger  of  leaving 
the  public  interests  of  Chicago  to  a  lot  of  common  scoun- 
drels. This  led  to  the  civil  service  law  of  1895,  which 
prepared  the  way  for  the  divorce  of  our  municipal  govern- 
ment from  national  politics  —  a  separation  which  public 
opinion  should  at  once  decree  and  enforce. 

The  growing  interest  in  municipal  reform  had  already 
found  expression  in  a  large  and  representative  conference, 
held  at  the  call  of  the  Civic  Federation  in  January,  1895. 
At  this  conference  strong  appeals  were  made  to  the 
members  of  both  national  parties  to  attend  their  respective 
primaries  and  get  the  bosses  to  nominate  honest  aldermanic 
candidates.  This  was  the  final  exhortation  to  the  bosses  to 
be  good  and  give  us  honest  public  officials.  They  were, 
no  doubt,  flattered  by  the  appeal.  It  assumed  that  they 
are  not  wholly  lost  to  decency,  and  are  even  capable  of 
becoming  instruments  and  leaders  of  reform.  It  also 
assumed  that  we  must  rely  upon  them,  that  they  only  hold 
the  keys  of  practical  politics,  that  they  alone  understand 
the  mystery  of  carrying  elections.  These  absurd  assump- 
tions indicate  how  innocent  we  all  were  only  two  years  ago. 

The  aldermanic  election  of  1895  was  held  in  due  time. 
The  last  appeal  to  the  politicians  had  failed.  A  very  few 
honest  men  were  chosen  to  associate  with  a  lot  of  the  worst 

9 


ESSAYS  AND  ADDRESSES 

scoundrels  ever  gathered  in  one  place  outside  of  the  peni- 
tentiary. Then  followed  the  barter  of  public  franchises 
and  the  blackmail  of  private  interests,  to  which  reference 
has  been  already  made. 

It  was  in  the  face  of  these  conditions,  when  good 
citizens  doubted  whether  anything  could  be  done,  that  the 
political  committee  of  the  Civic  Federation  called  another 
general  conference  which  met  last  January  to  consider 
whether  anything  in  fact  could  be  done  about  it.  Since  the 
conference  of  a  year  before,  the  civil  service  law  had  been 
passed  and  an  excellent  commission  appointed.  Hence, 
none  of  us  regarded  it  as  absolutely  necessary  to  vote  on 
party  grounds  for  whatever  boodlers  and  spoilsmen  our 
national  parties  might  regularly  name.  The  conference 
made  no  further  appeal  to  the  bosses,  but  took  action 
which  resulted  in  the  organization  of  the  INIunicipal  Voters' 
League.  This  is  an  organization  of  busy  men  who  are 
neither  seekers  nor  holders  of  public  office.  The  League 
took  the  field  at  once  and  made  its  appeal  directly  to  the 
voters.  There  were  thirty-four  retiring  aldermen,  most  of 
whom  desired  to  be  "vindicated"  by  a  reelection.  When 
it  was  found  that  the  League  would  publish  the  truth 
about  them,  some  retired.  Others  were  defeated  at  the 
polls.  Of  the  six  who  were  reelected  to  the  council,  two 
were  supported  by  the  League,  two  were  opposed  by 
candidates  whom  it  endorsed,  and  two  were  unopposed  by 
fit  nominees.  The  League  finally  endorsed  candidates, 
more  or  less  fully,  in  twenty-nine  and  won  in  twenty-six 
wards. 

The  result  of  this  first  disinterested  and  direct  appeal 

10 


THE  MUNICIPAL  OUTLOOK 

to  the  voters,  surprised  good  citizens  almost  as  much  as  it 
did  the  political  bosses.  It  also  shattered  the  superstition 
that  only  a  mysterious  combination  of  "pulls"  and 
"boodle"  and  "astute  politicians"  can  bring  out  candidates 
and  secure  their  election  to  public  office. 

This  was  accomplished  because  the  people  are  weary 
beyond  endurance  of  the  spoilsmen  and  all  their  works. 
The  Municipal  Voters'  League  simply  served  to  unite  the 
vast  majority  of  citizens  who  are  animated  by  a  like 
patriotic  purpose  in  their  desire  for  a  radical  and  per- 
manent reform  of  our  municipal  administration.  In  its 
good  work  it  had  the  cordial  cooperation  and  efficient 
support  of  the  Civic  Federation  and  nearly  the  entire  press 
of  the  city. 

The  time  will  no  doubt  come  when  it  will  seem  strange 
indeed  that  we  could  have  so  rejoiced,  as  we  have  this  year, 
because  somewhat  more  than  one-third  of  the  members  of 
our  city  council  are  men  of  common  honesty.  The  recent 
foreign  observer,  already  quoted,  in  referring  to  our 
reform  movement,  says:  "It  is  thought  a  great  step 
forward  that  there  are  now  actually  one-third  of  the 
members  of  the  municipal  body  who  can  be  relied  upon  to 
refuse  a  bribe."  We  do  not,  however,  pretend  that  the 
result  of  the  late  aldermanic  election  was  especially  note- 
worthy in  itself.  Lender  normal  conditions,  with  party 
management  and  the  nomination  and  election  of  public 
officials  in  the  hands  of  private  citizens  having  no  interest 
but  the  public  good,  the  choice  of  honest  men  for  official 
service  would  be  a  matter  of  course. 

We  rejoice  at  the  result  of  the  aldermanic  election  of 

11 


ESSAYS  AND  ADDRESSES 

1896,  because  that  result  clearly  indicates  the  final 
awakening  of  good  citizens  to  the  obligations  of  citizenship 
and  a  greatly  increased  public  interest  in  municipal  reform. 
It  shows  that  we  have  finally  come  to  realize  that  political 
institutions,  however  good,  will  not  work  themselves,  or 
produce  good  government  when  controlled  by  men  who 
have  only  private  ends  to  serve. 

The  council  of  1895  marked  the  culmination  of  a  bad 
system.  It  contained  a  few  isolated,  helpless  members 
who  earnestly  sought  to  discharge  their  public  duties. 
The  council  of  1896  marks  the  beginning  of  better  things. 
It  has  a  compact  and  effective  minority,  composed  of 
honest  and  able  men  whose  service  has  already  greatly 
benefited  the  city.  Their  presence  in  the  council  is  the 
harbinger  of  honest  and  efficient  municipal  government  for 
Chicago.  That  they  could  be  placed  there  by  a  hasty 
effort,  that  was  slight  indeed,  is  itself,  to  good  citizens,  a 
revelation  of  the  highest  value. 

For  years  we  had  seen  our  public  service  sink  lower  and 
lower  and  our  municipal  administration  become  more  and 
more  a  criminal  conspiracj^  We  had  sought  to  check  this 
by  an  appeal  to  the  political  bosses,  whom  we  regarded  as 
our  only  hope.  After  they  had  again  and  again  failed  us, 
as  it  was  inevitable  they  should  do,  being  themselves  the 
product  of  the  bad  system  to  be  reformed,  we  almost 
despaired,  and  even  began  to  feel  that  perhaps,  after  all, 
the  worst  possible  municipal  government  was  part  of  the 
cost  of  what  we  still  tried  to  regard  as  free  institutions. 

We  must  not,  however,  stop  even  to  celebrate  the 
victory  of  last  Spring.    It  was  but  a  mere  beginning,  and 

12 


THE  MUNICIPAL   OUTLOOK 

its  chief  significance  lies  in  what  it  taught  us  of  the  way 
which,  if  faithfully  pursued,  will  lead  to  final  and  per- 
manent success.  The  fundamental  difficulty  with  reform 
movements  still  lies  in  the  fact  that  the  active  participation 
of  private  citizens  in  public  affairs  is,  at  best,  spasmodic 
and  far  from  general.  Genuine  and  permanent  reform 
awaits  the  dissipation  of  the  heresy  that  the  private  affairs 
of  the  citizen  are  paramount  and  his  political  duties 
secondary  and  incidental.  When  we  fully  realize  that 
free  institutions  will  not  work  themselves;  that  their  man- 
agement cannot  be  safely  left  to  the  holders  and  seekers 
of  public  office;  and  that  it  is  but  the  reasonable  knight- 
service  of  the  private  citizen  to  control  and  work  them, 
we  shall  promptly  and  forever  dispose  of  the  spoilsman, 
and  our  public  service  will  again  be  honorable  and  honored 
among  men. 

The  time  has  come  to  insist  upon  the  absolute  and  final 
divorce  of  our  municipal  business  from  national  politics. 
Our  next  municipal  campaign  should  be  conducted  solely 
for  the  sake  of  Chicago.  We  have  spent  the  recent  weeks 
in  saving  the  country  from  M^hat  many  of  us  believed  to  be 
repudiation  and  dishonor.  Let  us  spend  some  weeks  this 
Winter  and  early  Spring  in  saving  our  city  from  the 
spoilsmen  and  boodlers  who  are  gnawing  at  her  vitals. 

In  feudal  times  the  regular  knight-service  of  forty  days 
in  each  year  was  sometimes  commuted  so  that  of  every 
three  knights  one  served  a  three-fold  term,  the  others 
helping  to  equip  him.  With  us,  the  public  service  which 
we  all  alike  owe,  is  either  entirely  left  to  political  bosses, 
or  is  so  commuted  that  one  man  serves  for  a  hundred  or 

13 


ESSAYS  AND  ADDRESSES 

even  a  thousand  of  his  neighbors,  who  slave  at  their  private 
affairs  and  regard  him  as  a  crank  who  neglects  his  business 
and  whose  motive  must  be  to  secure  public  office  for  him- 
self. So  completely  have  private  citizens  come  to 
neglect  their  public  duties,  that  one  can  hardly  render  the 
disinterested  knight- service  which  the  State  has  a  right  to 
demand  of  all,  without  having  his  motives  suspected. 
When  good  citizens  assume  charge  of  political  organiza- 
tions and  call  men  to  office  because  of  their  fitness  to  render 
efficient  public  service,  our  point  of  view  will  be  changed 
and  participation  in  public  matters  will  become  general. 
If  the  overwhelming  majority  of  our  fellow-citizens  in  all 
parts  of  Chicago,  who  desire  good  government  will  next 
Spring  spend  not  forty  days,  but  even  a  few  evenings  in 
consulting  with  their  neighbors  about  the  public  welfare 
of  Chicago,  and  assist  in  securing  the  nomination  of  fit 
candidates  for  city  and  town  officers ;  or,  if  many  of  them 
will  simply  learn  after  their  nomination  what  candidates 
should  be  approved  and  make  it  known  to  their  personal 
friends  and  immediate  neighbors,  soliciting  their  votes  for 
such  candidates, —  the  occupation  of  the  spoilsmen  will 
disappear  and  the  city  will  be  redeemed. 

The  Municipal  Voters'  League,  the  Civic  Federation, 
and  a  press  which  fearlessly  and  ably  performs  its  public 
duty,  will  lead  the  way.  They  desire  the  most  earnest  and 
active  cooperation  and  support  of  all  good  citizens,  irre- 
spective of  their  political  affiliations  and  without  respect 
to  their  opinions  about  the  currency  or  the  tariff.  During 
some  further  probationary  period,  while  the  heresy  that 
national  parties  should  control  municipal  business  as  party 

14 


THE  MUNICIPAL   OUTLOOK 

spoils  lingers  in  the  minds  of  any  whose  intentions  are 
good,  we  will  not  refuse  the  help  of  party  machines  in  the 
nomination  and  support  of  entirely  satisfactory  candi- 
dates. It  should  be  perfectly  understood,  however,  that 
at  the  next  municipal  election  the  plain  citizens  of  Chicago, 
who  have  no  personal  ends  to  serve  and  are  concerned  only 
for  the  welfare  of  their  city,  intend  to  have  good 
candidates  to  support  for  municipal  office,  even  if  they 
have  to  nominate  them  without  the  aid  or  consent  of 
any  self-constituted  party  manager. 

That  we  shall  elect  a  sufficient  number  of  honest  and 
capable  aldermen  to  join  the  pioneers,  who  have  so 
admirably  opened  the  fight  for  good  government,  and 
make  a  good  working  majority  in  the  council  is  already 
certain.  We  can  easily  improve  on  the  hastily  organized 
campaign  of  this  year.  The  records  of  the  retiring  mem- 
bers of  the  council  —  and  most  of  them  will  be  retired 
members  after  next  April  —  have  been  compiled  from 
official  sources  with  great  care,  and  we  are  fully  prepared 
to  publish  them  with  some  attention  to  detail.  Now  there 
is  nothing  that  a  city  statesman  of  the  spoils  variety  so 
much  dislikes  as  a  campaign  in  which  his  official  record  is 
made  the  issue.  He  abhors  it  as  nature  does  a  vacuum. 
He  much  prefers  to  have  a  local  campaign  conducted  on 
broad  national  lines.  He  regards  discussions  of  the  tariff, 
the  currency  and  even  bleeding  Cuba  as  of  much  greater 
educational  value  than  the  facts  of  his  own  modest  career. 
In  this,  however,  he  is  much  mistaken.  There  is  absolutely 
no  subject  of  study  or  course  of  training  of  such  vital 
interest  and  value,  for  those  who  desire  to  become  good 

15 


ESSAYS  AND  ADDRESSES 

citizens  and  hereafter  discharge  their  political  duties,  as 
that  furnished  by  the  careers  and  methods  of  the  spoils- 
men and  boodlers  who  have  made  municipal  government 
in  the  United  States  a  disgrace  to  the  American  name. 

The  prospect  is  already  bright  that  we  shall  find  it  easy 
this  time  to  secure  good  aldermanic  candidates.  It  is  one 
thing  to  be  placed  in  criminal  company  for  two  years, 
where  you  can  neither  serve  public  interests  nor  even  check 
public  plunder.  It  is  quite  another  matter  to  become  a 
member  of  a  legislative  body  possessing  great  powers 
which  its  majority  will  exercise  only  to  conserve  public 
interests.  It  will  be  a  high  honor  to  be  a  member  of  our 
next  common  council.  Those  who  share  it  will  have  the 
splendid  opportunity  to  begin  the  reform  of  our  municipal 
government. 

We  must  not,  however,  in  our  earnest  desire  to  redeem 
the  council  and  make  it  sen^e  public  instead  of  private 
ends,  overlook  other  departments  of  our  absurdly  complex 
municipal  system.  This  time  we  shall  also  endeavor  to 
secure  the  election  of  town  officers  —  especially  the  asses- 
sors —  who  are  not  only  good  men  but  who  are  entirely  free 
from  obligations  to  the  party  machines.  It  is  the  hope  of 
all  good  citizens  that  we  shall  obtain  well-considered 
revenue  legislation  at  Springfield  this  Winter.  But 
whether  we  succeed,  and  especially  if  we  fail,  in  this,  it  is 
very  desirable  at  the  next  municipal  election  to  remove  the 
assessment  of  taxes  absolutely  from  party  control. 

The  choice  of  a  mayor  at  the  next  election  appeals  most 
strongly  to  the  public  interest.  When  we  think  of  what 
the  Mayor  of  Chicago  might  be  and  do,  and  contrast  this 

16 


THE  MUNICIPAL  OUTLOOK 

with  what  many  of  our  mayors  have  been  and  done,  we 
shall  not  over-estimate  the  importance  to  our  city  of  the 
choice  of  its  next  mayor.  Let  us  picture  to  ourselves  for 
a  moment  what  kind  of  man  he  should  be,  and  what 
ought  to  be  his  attitude  to  the  vast  public  and  private 
interests  in  respect  to  which  he  must  officially  act. 

The  next  mayor  of  Chicago  should  be  a  man  of  affairs. 
He  should  be  of  unblemished  reputation,  good  ability, 
decision  of  character,  and  unflinching  courage.  He  should 
have  the  judicial  poise  of  mind  that  will  enable  him  to  hear 
many  things  of  all  men  and  then  select  and  act  upon  only 
what  shall  make  for  the  public  welfare.  He  should  be  free 
of  prejudice  for  or  against  persons,  corporations,  parties, 
creeds,  and  nationalities,  in  order  that  he  may  do  justly  by 
all.  He  should  be  frank  and  open  in  the  discharge  of 
official  duty  and  willing  to  accept  and  bear  the  responsi- 
bility of  his  official  acts,  whether  for  the  moment  popular 
or  otherwise.  He  should  be  absolutely  free  from  every 
obligation  to  any  party  or  personal  machine.  He  should 
put  behind  him  all  ulterior  ambitions  and  enter  office  with 
the  high  resolve  to  do  his  whole  duty  here  and  now,  as  he 
is  given  to  see  that  duty,  without  thought  of  the  effect  of 
his  official  acts  upon  his  future  career.  He  should,  under 
all  circumstances,  realize  that  he  is  retained  by  the  city, 
and  that  to  his  fidelity  she  has  entrusted,  in  large  measure, 
the  public  welfare.  He  should  surround  himself  with  a 
cabinet  of  men  of  like  high  character  and  purpose,  who  will 
give  the  city  the  full  benefit  of  the  civil  service  law,  and 
conduct  its  business  without  favoritism  and  upon  the 
strictest  business  principles. 

17 


ESSAYS  AND  ADDRESSES 

Can  such  a  mayor  be  had  through  regular  party  nom- 
ination? Can  there  any  good  thing  cojne  out  of  Nazareth? 
This  is  always  possible,  but  highly  improbable.  However, 
we  are  willing  to  wait  a  little  while  to  see  what  the  pros- 
pects are.  Even  this  is  a  concession  to  conservative 
influences,  and  for  the  time  being.  The  claim  by  national 
political  parties  of  the  right  to  name  candidates  for  offices 
which  are  merely  local,  is  itself  a  survival  of  the  spoils 
system  which  we  tolerate  only  because  we  are  accustomed 
to  it. 

There  are  many  who  believe  that  no  man  thus  nom- 
inated can  be  free  from  at  least  implied  obligations  to  the 
machine.  Possibly  this  is  an  extreme  view,  but  it  has  much 
to  justify  it.  Anyway,  we  insist  upon  a  candidate  for 
mayor  at  the  approaching  election  who  shall  be  free  from 
machine  obligations,  express  or  implied.  No  one  of  ma- 
chine affiliations,  no  one  who  is  merely  "streaked  with 
decency,"  will  do  this  time.  If  it  appears  that  we  are  not 
to  have  a  fit  candidate  by  party  nomination,  such  an  one 
will  be  named  by  the  reform  forces  of  the  city  in  time  for 
an  aggressive  campaign. 

Such  are  the  inspiring  opportunities  and  prospects  of 
our  next  municipal  campaign.  Shall  they  be  improved 
and  realized?  That  is  for  the  good  citizens  of  Chicago  to 
say.  We  believe  that  they  are  ready  for  the  contest  and 
that  the  result  does  not  admit  of  doubt.  But  we  must  not 
be  content  with  the  victory  that  awaits  us  next  Spring.  It 
will  simply  clear  the  field  for  action.  Our  municipal  gov- 
ernment is  absurd,  complex,  and  costly.  Within  the 
territory  of  Chicago  are  found,  in  practically  independent 

18 


THE  MUNICIPAL  OUTLOOK 

operation,  the  county  and  city  governments,  a  board  of 
education,  a  library  board,  three  park  boards,  and  seven 
towns.  As  each  of  these  exercises  the  power  of  taxation, 
we  are  not  required  to  go  anywhere  to  be  taxed.  Under 
such  conditions  good  municipal  government  is  impossible. 
The  machinery  of  our  local  administration  must  be 
simplified,  our  elective  officers  and  elections  reduced  in 
number,  and  our  municipal  government  unified. 

If  the  good  citizens  of  our  city  but  perform  their  public 
duties  with  something  of  the  energy  which  they  expend 
in  their  private  business,  their  municipal  administration 
will  speedily  become  a  model  of  integrity,  economy  and 
efficiency,  and  Chicago  will  move  forward  with  irresistible 
strides  to  realize  her  splendid  destiny.  Let  us  cheerfully 
perform  the  knight-service  which  it  is  but  the  reasonable 
right  of  our  city  to  require.  Let  us,  while  diligent  in 
private  business,  render  unto  Caesar  the  things  that  are 
Caesar's. 


19 


THE    MUNICIPAL   VOTERS'    LEAGUE    OF 
CHICAGO* 

TVyTUNICIPAL  reform  has  been  so  long  a  topic  of 
languid  discussion  and  so  little  an  object  of  practi- 
cal work  among  us,  efforts  to  accomplish  it  have  been  so 
spasmodic  and  their  results  so  transient,  that  it  is  too  early 
to  predict  whether  the  present  general  movement  to  this 
end  will  prove  persistent.  There  are,  however,  indications 
of  popular  interest  that  give  promise  of  ultimate  success. 

The  need  of  the  hour  is  to  make  municipal  government 
representative.  It  is  now  dominated  by  special  interests. 
It  must  be  made  representative  of  the  people.  To  the 
extent  that  we  have  abandoned  the  legislature  to  private 
interests,  and  fallen  back  on  the  executive  and  the  courts, 
we  have  armed  special  privilege  with  affirmative  au- 
thority, and  left  public  interests  to  be  defended  by 
officials  exercising  powers  which  are  mainly  negative. 
Thus,  in  lieu  of  simple  and  responsible  municipal  govern- 
ment exercising  adequate  affirmative  powers,  we  have  a 
hotchpotch  of  warring  officials  and  boards. 

Honesty  and  capacity  are  the  essential  qualifications 
for  public  service.  A  city  government  manned  by  officials 
having  these  qualifications  will  be  both  representative  and 
efficient.  How  certainly  to  secure  such  public  officials  is 
the  problem  of  municipal  reform.  It  is  prerequisite  to 
the  discussion  of  policies  and  measures.  The  aim  must  be 
*  Reprinted  from  "The  Atlantic  Monthly,"  June,  1900. 

20 


THE  MUNICIPAL  VOTERS'  LEAGUE 

to  make  municipal  government  sound  to  the  core.  All 
else  will  follow. 

Some  account  of  the  work  led  by  the  Municipal  Voters' 
League,  and  now  going  on  in  Chicago,  may  serve  as  a 
contribution  to  the  movement  to  recover  representative 
government.  While  the  methods  of  the  League  may  not 
prove  to  be  generally  or  permanently  applicable,  their 
success  thus  far  is  full  of  promise. 

The  city  government  of  Chicago  touched  bottom  in 
1895,  when  fifty-eight  of  its  sixty-eight  aldermen  were 
organized  into  a  "gang"  for  the  service  and  blackmail  of 
public  service  corporations.  Within  that  year  six  great 
franchises  of  enormous  value  were  shamelessly  granted 
away,  in  utter  disregard  of  general  protest  and  the  vetoes 
of  the  mayor.  Most  of  the  members  of  the  council  were 
without  personal  standing  or  character.  The  others  were 
practically  without  voice  or  influence.  The  people  scarcely 
realized  that  the  council  contained  an  element  representa- 
tive of  public  interests.  The  agitation  led  by  the  Civic 
Federation,  the  Civil  Service  Reform  Association,  and 
other  reform  organizations  had,  however,  borne  fruit. 
A  wide  interest  in  local  administration  had  been  aroused, 
and  a  desire  for  better  things  was  already  general.  The 
task  seemed  all  but  impossible.  Those  looked  to  for 
leadership  despaired  of  success.  The  city  was  in  the  grasp 
of  strongly  intrenched  special  interests.  Certain  public 
service  corporations  owned  the  council,  and  profited  by 
undue  influence  with  other  agencies  of  the  city  govern- 
ment. Enormous  private  interests  were  at  stake,  and  the 
city  seemed  to  be  at  their  mercy.    The  political  organiza- 

21 


ESSAYS  AND  ADDRESSES 

tions  were  of  the  usual  character.  Their  relations  with  the 
corporations  were  not  unfriendly.  The  city  carried  on 
its  registration  lists  over  three  hundred  and  fifty  thousand 
voters.  About  three- fourths  of  these  were  of  foreign  birth 
or  parentage,  and  many  understood  the  English  language 
but  imperfectly,  if  at  all.  Nearly  all  who  composed  this 
vast  aggregation  of  seemingly  diverse  elements  were  bent 
upon  their  private  pursuits.  Could  they  be  united  to 
rescue  the  city  from  the  spoilsmen?    Few  so  believed. 

Such  was  the  situation  when,  in  January,  1896,  at  the 
call  of  the  Civic  Federation,  about  two  hundred  men, 
representing  various  clubs  and  reform  organizations,  met 
to  consider  what  might  be  done.  The  year  1895  had 
brought  the  new  civil  service  law,  the  most  thorough  yet 
enacted.  This  had  cleared  the  way  for  a  wide  cooperation 
of  good  citizens,  regardless  of  national  politics.  In  the 
conference  it  was  assumed  that  something  must  be  done. 
No  one  was  prepared  to  say  what  should  be  attempted. 
A  sharp  discussion  arose  on  an  individual  proposition  to 
form  a  "municipal  party."  The  matter  was  finally  re- 
ferred to  a  committee  of  fifteen  representative  men. 
They  subsequently  reported  in  favor  of  the  organization 
of  a  "Municipal  Voters'  League,"  to  be  composed  of  a 
hundred  men,  and  have  power  to  act.  The  principal 
objects  announced  were  to  secure  the  election  of 
"aggressively  honest  men"  to  the  council,  and  to  sustain 
the  civil  service  law.  As  the  conference  could  not  agree 
upon  a  "municipal  party,"  it  chose  the  indefinite  term 
"League."  Thus  the  movement  was  left  free  to  show  by 
its  works  whether  it  was  to  be  a  party  or  something  less. 

22 


THE  MUNICIPAL  VOTERS'  LEAGUE 

The  committee  of  one  hundred  met  but  twice:  once  to 
appoint  a  small  executive  committee,  and  again,  after  the 
first  campaign,  to  hear  its  report.  It  then  disbanded, 
giving  the  executive  committee  power  to  perpetuate  itself. 
After  the  first  campaign  the  League  assumed  its  present 
simple  form  of  organization.  The  executive  committee 
is  composed  of  nine  members.  The  terms  of  one-third 
of  these  expire  each  year.  Their  successors  are  elected  by 
those  holding  over.  The  committee  selects  the  officers 
from  its  own  membership.  Their  duties  as  officers  are 
administrative,  no  final  action  being  taken  without  the 
vote  of  the  committee.  Advisory  committees  of  from  one 
to  five  members  are  appointed  in  the  wards.  Their  duties 
are  to  furnish  information  and  advice;  especially  when 
called  for,  and  on  occasion  as  directed  to  start  movements 
for  the  nomination  of  independent  candidates.  Finance 
and  other  special  committees  are  also  appointed,  some  of 
whose  members  are  usualh^  drawn  from  outside  the 
executive  committee.  No  person,  committee,  or  organiza- 
tion in  the  wards  has  authority  to  use  the  name  of  the 
League  or  in  any  way  to  commit  it  for  or  against  any 
candidate.  This  makes  its  action  definite  and  authori- 
tative. 

The  general  membership  of  the  League  is  composed 
of  voters,  who  sign  cards  expressing  approval  of  its  pur- 
poses and  methods.  No  general  meetings  of  the  members 
are  held ;  but  circular  letters  advising  those  in  a  given  ward 
of  the  local  situation  are  frequently  mailed  during  alder- 
manic  campaigns  to  secure  a  wide  cooperation.  At  the 
opening  of  its   second  campaign   the   League  mailed   a 

23 


ESSAYS  AND  ADDRESSES 

pamphlet  to  every  registered  voter  in  the  city,  giving  the 
history  for  some  years  of  franchise  legislation  by  the 
council,  with  a  full  report  on  the  records  of  retiring 
members.  Since  its  work  has  become  thoroughly  known, 
the  general  publication  by  the  newspapers  of  the  reports 
and  recommendations  of  the  League  is  very  effective.  Its 
facts  and  conclusions  are  usually  accepted  by  the  press, 
and  no  substantial  newspaper  support  can  be  had  for 
candidates  whom  it  opposes. 

The  League  makes  no  attempt  to  keep  up  the  usual 
pretence  of  direct  representation  of  its  general  member- 
ship. No  claim  is  made  that  the  action  of  the  executive 
committee  represents  any  save  those  who  approve  it.  The 
facts  upon  which  such  action  is  based  are  always  given. 
The  appeal  is  directly  to  the  individual  voter,  by  means  of 
specific  recommendations  supported  by  the  salient  facts. 
In  due  time  before  nominations  are  made,  a  full  report  of 
the  official  records  of  retiring  members  of  the  council  is 
published,  with  specific  judgments  as  to  their  respective 
fitness  for  defeat  or  reelection.  On  the  eve  of  the  election 
a  like  report  on  all  candidates  is  published  for  the  informa- 
tion of  the  voters.  It  is  assumed  that  the  main  issue  is 
upon  character  and  capacity.  The  voters  are  advised, 
however,  whether  a  given  candidate  stands  on  the  "League 
platform,"  which  is  a  pledge  to  exact  full  compensation 
for  franchises,  support  the  civil  service  law,  and  unite 
with  others  to  secure  a  non-partisan  organization  of  the 
council. 

The  League  is  entirely  non-partisan.  The  members 
of  its  executive  committee  want  nothing  for  themselves. 

24 


THE  MUNICIPAL  VOTERS'  LEAGUE 

It  strives  only  for  the  council.  This  one  thing  it  does.  It 
makes  no  fight,  as  yet,  on  "the  machine"  as  such.  Its  fun- 
damental purpose  is  to  inform  the  voters  of  the  facts 
about  all  candidates.  There  is  nothing  that  the  city 
statesman  of  the  ordinary  spoils  variety  so  dislikes  as  a 
campaign  in  which  the  issue  is  upon  the  facts  of  his  own 
record.  He  abhors  such  an  issue  as  nature  abhors  a 
vacuum.  He  prefers  a  campaign  conducted  on  broad 
national  issues.  He  regards  discussions  of  the  tariff  and 
the  currency  as  of  much  greater  educational  value  than 
the  facts  of  his  own  modest  career.  In  this  he  is  much 
mistaken.  The  League  has  demonstrated  that  there  is 
nothing  of  such  interest  to  the  voters,  on  the  eve  of  a 
municipal  election,  as  an  authoritative  statement  of  these 
suggestive  facts. 

The  headquarters  of  the  League  is  the  clearing  house 
of  the  aldermanic  campaign.  It  is  thronged  with  candi- 
dates, party  representatives,  and  citizens.  They  come  with 
facts  for  the  executive  committee,  or  to  advise  and  consult 
it.  The  president  and  secretary  and  their  assistants 
patiently  hear  all.  More  and  more  they  are  consulted  in 
advance  about  nominations.  Party  managers  in  many 
wards  in  which  the  League's  support  has  become  vital  to 
success  submit  names  of  candidates  in  advance.  It  often 
happens  that  several  are  rejected  before  one  is  suggested 
who  bears  the  close  scrutiny  of  the  League.  The  confi- 
dences of  these  conferences  with  party  managers  are 
faithfully  kept.  No  claim  is  ever  publicly  made  that  a 
given  nomination  has  been  forced  by  the  committee.  The 
party   managers    are   given    full    credit    for    all    worthy 

25 


ESSAYS  AND  ADDRESSES 

nominations.  The  League  rarely  suggests  a  candidate  in 
the  first  instance.  It  is  thus  able  to  deal  fairly  with  all. 
It  often  participates  directly  in  the  campaign  in  close 
wards  after  the  candidates  are  named. 

Such  in  brief  are  the  methods  of  the  Municipal  Voters' 
League.  What  are  the  results?  It  has  now  conducted 
five  campaigns,  in  each  of  which  the  election  of  one-half 
the  membership  of  the  council  of  the  city  of  Chicago  was 
involved.  In  its  first  campaign,  twenty  out  of  thirty-four 
wards  returned  candidates  having  its  endorsement,  two  of 
these  being  independents.  Five  others,  to  whom  it  gave 
its  qualified  endorsement  as  the  choice  of  evils,  were  chosen. 
Each  of  these  last  proved  unfaithful  to  public  interests. 
Five  others  betrayed  their  pledges.  At  the  expiration  of 
their  term,  two  years  later,  the  League  recommended 
nineteen  retiring  members  for  defeat,  and  fifteen  for 
reelection.  Of  the  first  group,  but  five  secured  renom- 
inations,  and  but  two  reelections.  Of  the  second  group, 
three  declined  renominations  in  advance;  the  twelve 
others  were  all  renominated,  and  eleven  of  them  reelected. 
In  the  same  campaign,  twenty-five  former  members  of 
bad  record  sought  to  return  to  the  council.  The  League 
objected  to  their  nomination,  giving  their  records.  Only 
six  were  nominated,  and  three  elected.  In  the  campaign 
of  the  Spring  of  1899,  the  Democratic  candidate  for  mayor 
carried  seventeen  wards  from  which  Republican  candidates 
for  the  council  having  the  support  of  the  League  were 
returned.  All  but  two  of  the  retiring  members  condemned 
by  the  League  were  defeated  for  reelection. 

The  net  result  of  the  five  campaigns  must  suffice,  in 

26 


THE  MUNICIPAL  VOTERS'  LEAGUE 

lieu  of  further  details  of  the  several  contests.  Of  the 
fifty-eight  "gang"  members  of  1895  but  four  are  now  in 
the  council.  The  "honest  minority"  of  ten  of  1895 
became  a  two- thirds  majority  in  1899.  The  quality  of  the 
membership  has  steadily  improved.  Each  year  it  is  found 
easier  to  secure  good  candidates.  To-day  the  council 
contains  many  men  of  character  and  force.  A  considera- 
ble number  of  prominent  citizens  have  become  members. 
The  council  is  organized  on  a  non-partisan  basis,  the  good 
men  of  both  parties  being  in  charge  of  all  the  committees. 
It  is  steadily  becoming  more  efficient.  No  general  "boodle 
ordinance"  has  passed  over  the  mayor's  veto  since  the  first 
election  in  which  the  League  participated.  Public  despair 
has  given  place  to  general  confidence  in  the  early  redemp- 
tion of  the  council.  It  is  no  longer  a  good  investment  for 
public  service  corporations  to  expend  large  sums  to  secure 
the  reelection  of  notorious  boodlers.  It  is  no  longer 
profitable  to  pay  large  amounts  to  secure  membership  in 
a  body  in  which  "aldermanic  business"  has  ceased  to  be 
good.  It  is  now  an  honor  to  be  a  member  of  the  Chicago 
council.  Any  capable  member  may  easily  acquire  an 
honorable  city  reputation  in  a  single  term  of  service. 

This  change  has  been  wrought  in  the  face  of  the  most 
powerful  opposing  influences.  The  licenses  or  franchises 
of  the  principal  street  railways  of  Chicago  are  soon  to 
expire.  For  three  years,  from  1896,  the  companies  sought 
renewals  on  terms  without  regard  to  the  rights  of  the  city. 
By  grossly  improper  means  the  so-called  Allen  bill  was 
secured  from  the  legislature  in  1897,  permitting  exten- 
sions of  street  railway  franchises  for  fifty  instead  of  twenty 

27 


ESSAYS  AND  ADDRESSES 

years,  as  before.  From  the  passage  of  this  bill  certain  of 
the  street  railway  companies  brought  every  possible  in- 
fluence to  bear  on  the  members  of  the  Chicago  council  to 
secure  fifty-j^ear  extensions  without  compensation  to  the 
city.  It  is  believed  that  members  of  the  rank  and  file  could 
have  taken  fifty  thousand  dollars  each  for  their  votes.  But 
the  council  stood  firm.  A  clear  majority  refused  all  im- 
proper advances.  The  attempt  ended  in  utter  failure.  It 
was  finally,  late  in  1898,  abandoned. 

The  enactment  of  the  Allen  bill  in  1897  led  to  a  demon- 
stration of  the  irresistible  power  of  a  persistent  public 
opinion.  Within  two  years  the  succeeding  legislature, 
with  but  one  dissenting  vote,  repealed  the  act,  and  restored 
the  law  which  it  supplanted.  The  time  had  come  when 
even  vast  private  interests  might  not  with  impunity  pur- 
chase legislation  in  Illinois.  The  deep  disgrace  to  the  State 
in  the  passage  of  the  Allen  bill  was  not  forgotten  by  the 
people.  The  Municipal  Voters'  League,  on  the  eve  of  the 
legislative  campaign  of  1898,  caused  to  be  published 
throughout  the  State,  for  their  information,  the  detailed 
records  of  all  members  of  the  legislature  on  the  passage  of 
the  Allen  bill.  The  plain  facts  rendered  unavailable  for 
renomination  most  of  those  who  had  betrayed  the  people 
by  its  support.  Fully  eighty-two  per  cent  of  its  supporters 
failed  of  reelection.  A  vicious  minority  scheme  of  repre- 
sentation alone  saved  most  of  the  others  from  political 
death. 

The  defeat  of  street  railway  legislation  in  Chicago 
under  the  Allen  bill,  the  failure  throughout  the  State  of 


28 


THE  MUNICIPAL  VOTERS'  LEAGUE 

its  supporters  for  reelection,  and  the  restoration,  by 
practically  unanimous  vote  of  the  legislature,  of  the  law 
which  it  had  supplanted,  constitute  the  most  notable 
triumph  of  public  opinion  of  recent  years.  The  end  is  not 
yet;  but  not  soon  again  will  public  service  corporations 
openly  purchase  legislation  in  Illinois. 

The  few  busy  men  whose  privilege  it  has  been  to  direct 
the  work  of  the  Municipal  Voters'  League  know  full  well 
that  only  a  beginning  has  been  made,  that  merely  the  edge 
of  a  great  problem  has  been  touched.  They  make  no  claims 
for  themselves.  It  has  only  been  their  fortune  to  lead  for 
a  little  while,  in  a  single  city,  a  growing  movement  of  the 
people  to  recover  representative  government.  To  the 
united  support  of  the  reputable  press,  and  the  splendid 
cooperation  of  good  citizens  of  all  parties  and  elements 
of  a  mixed  population,  are  due  the  results  attained.  Dis- 
interested leadership  was  alone  wanting.  This  the  League 
has  furnished.  It  has  wasted  no  energy  in  merely  making 
wheels  go  round.  Its  appeal  has  been  directly  to  the 
people.  It  has  entered  no  ea?  cathedra  judgments.  It  has 
simply  relied  upon  making  the  facts  known.  Aside  from 
pledges  of  support  of  the  civil  service  law,  for  non-partisan 
organization  of  the  council,  and  to  exact  adequate 
compensation  for  all  municipal  grants,  it  has  exacted  no 
pledges  from  candidates  supported.  The  League  has 
placed  the  emphasis  on  character  and  capacity.  It  main- 
tains that  a  council  composed  of  men  having  these  qualities 
will  faithfully  represent  the  people,  treat  justly  all  private 
interests,  and  dispose  of  every  question  on  its  merits. 


29 


ESSAYS  AND  ADDRESSES 

A  vision  of  representative  government  regained  in  the 
city,  as  the  basis  for  its  recovery  in  the  State  and  Na- 
tion, already  appears.  To  reahze  it,  we  must  renew  our 
faith.  Self-government  is  fundamental ;  good  government 
is  incidental. 


30 


COUNCIL  REFORM  IN  CHICAGO* 

ASSISTANCE   GIVEN    BY   THE    PRESS 

rpHE  League  maiiily  relies  on  the  mail  and  the  press 
to  communicate  its  facts  and  recommendations  to 
the  voters.  In  1897  it  mailed  to  every  registered  voter  in 
the  city  a  pamphlet  giving  a  detailed  history  of  franchise 
legislation  for  several  years,  with  the  records  in  respect 
thereto  of  the  retiring  members  of  the  council.  As  the 
work  of  the  League  has  become  known,  it  has  relied  more 
and  more  on  the  press  as  a  means  of  communication  with 
the  voters.  Its  report  on  the  official  records  of  the 
retiring  half  of  the  council,  usually  published  about  two 
months  before  the  election  of  new  members,  is  looked 
forward  to  as  a  sort  of  annual  judgment  day,  and  is 
generally  regarded  as  the  opening  of  the  aldermanic  cam- 
paign. Its  final  report  on  the  qualifications  of  all  candi- 
dates, usually  published  on  the  Friday  preceding  the 
election,  places  in  the  hands  of  all  voters  who  care  for  it 
the  facts  from  which  to  form  their  own  conclusions  for 
whom  to  vote. 

The  cordial  support  of  the  League,  through  five  con- 
secutive campaigns,  by  the  local  press,  illustrates  anew  the 
splendid  public  spirit  of  its  proprietors.  Full-page  adver- 
tisements, purporting  to  show  the  reasonableness  of  their 

*  This  paper  was  printed  in  pamphlet  form  in  1900.  Some  passages 
have  been  omitted,  in  most  cases  because  the  topics  have  been  suffi- 
ciently discussed  in  the  preceding  articles. 

31 


ESSAYS  AND  ADDRESSES 

demands,  were  run  for  days  in  all  the  great  dailies  by  the 
traction  companies  in  the  fight  to  obtain  fifty-year  exten- 
sions of  their  franchises,  to  which  reference  is  made  below. 
Yet  all  the  papers,  except  the  one  owned  by  certain  trac- 
tion interests,  remained  true  to  the  cause  of  the  people, 
actively  supporting  the  League  candidates  for  the  council. 
Chicago  owes  much  to  the  proprietors  of  her  great  news- 
papers. They  have  for  years  more  and  more  sunk  the 
ordinary  rivalries  of  business  and  cordially  united  in 
effective  support  of  whatever  has  made  for  civic  better- 
ment. Few  know  the  extent  or  power  of  the  influences 
which  they  have  resisted  to  this  end.  The  resources  of  the 
public  service  corporations  of  a  great  city  are  enormous. 
Like  the  centurion  of  old  they  say  unto  one,  Go,  and  he 
goeth;  and  to  another,  Come,  and  he  cometh;  and  to 
their  servants.  Do  this,  and  they  do  it.  In  their  fight 
for  fifty-year  franchises,  the  traction  companies  of  Chicago 
commanded  the  support  of  powerful  stockholders,  bond- 
holders, brokers,  and  bankers  —  all  whose  interest  it  is  to 
have  floods  of  local  investment  securities  of  the  highest 
possible  value.  All  these,  backed  by  the  other  public 
service  corporations,  exerted  every  possible  influence  upon 
the  public  press  in  behalf  of  special  privilege.  To  the 
honor  of  the  Chicago  press,  they  secured  but  a  single  news- 
paper and  that  by  direct  purchase. 

CAMPAIGN    METHODS 
There  is  no  attempt  by  the  League  to  keep  up  the 
usual  pretence  of  direct  representation  of  its  constituency. 
It  assumes  that  character  and  capacity  are  the  funda- 

32 


COUNCIL  REFORM  IN  CHICAGO 

mental  qualifications  for  useful  public  service;  that  men 
having  these  qualities  will  faithfully  represent  the  peo- 
ple, treat  justly  all  private  interests,  and  dispose  of 
every  public  question  on  its  merits.  It  claims  to  represent 
only  those  who  approve  its  purpose.  It  appeals  for  their 
support  in  every  case  only  on  the  basis  of  the  facts  given  to 
sustain  its  conclusion  and  recommendation.  The  appeal 
is  always  to  the  individual  voter  through  bulletins  such  as 
the  following: 

Twenty-first  Ward. 

.   — Lawyer,    603    Kedzie   Building,    resides  33    North 

Grove  place.  Elected  to  council  in  1898,  with  endorsement  of  League; 
since  assuming  office  has  made  constant  study  of  street  railway  situation ; 
instrumental  in  drafting  new  rules  for  council,  including  plan  for  stand- 
ing committee  on  conpensation,  which  rules  failed  of  adoption;  fought 
street  railways'  attempt  to  secure  fifty-year  franchises;  opposed  Powers' 
organization  of  council  and  voted  for  resolution  establishing  special 
committee  on  street  railway  legislation.  He  is  an  exceptionally  strong 
and  able  man  in  the  council  and  diligent  in  behalf  of  the  public  welfare. 
All  Good  Citizens  Should  Urge  Him  to  be  a  Candidate  and  Re- 
gardless OF  Party  Should  Insure  His  Reelection. 

Ward. 

.   — Republican;  insurance  business,  street;    residence, 

street.      Born  in   State   of  New  York ;  moved   to    Michigan    and 

enlisted  at  breaking  out  of  the  war;  has  been  in  insurance  business 
in  Chicago  for  many  years ;  an  old  resident  of  the  ward ;  he  declines  to 
say  whether  he  will  or  will  not  vote  for  or  against  fifty-year  franchises 
and  extensions ;  bears  a  good  business  reputation. 

The  first  of  the  above  recommendations,  backed  by  an 
active  campaign  in  the  ward  conducted  by  the  League, 
resulted  in  the  reelection  of  the  candidate  as  an  inde- 
pendent. In  the  other  case  the  candidate  was  defeated  in 
an  overwhelming  Republican  ward,  although  the  League 

33 


ESSAYS  AND  ADDRESSES 

was  obliged  to  say  of  his  opponent  that  his  business  record 
was  not  good  but  that  he  had  "signed  League  platform." 
It  is,  of  course,  not  to  be  supposed  that  such  treatment 
of  candidates  goes  without  question  from  those  condemned. 
In  every  campaign  some  bold  but  unwary  members  of 
"the  gang"  turn  upon  the  League.  How  these  oppor- 
tunities are  improved  may  be  illustrated  by  an  open  letter 
by  the  president  of  the  League  given  out  a  few  days  after 
the  publication  of  its  preliminary  report  on  the  retiring 
aldermen,  as  follows: 

Mr.  ,  Alderman  from  the Ward. 

Dear  Sir  —  Permit  me  to  acknowledge  receipt  on  this  date  of  the 
open  letter  of  the  14th  inst.,  with  which  you  have  honored  me.  You 
express  surprise  that  your  official  record  does  not  inspire  the  Municipal 
Voters'  League  with  confidence  in  your  zeal  in  the  defence  of  the  city 
from  fifty-year  extensions  of  existing  street  railway  franchises.  This 
merely  suggests  that  you  may  have  underestimated  the  capacity  of 
"  theoretical  reformers  "  to  draw  conclusions  from  official  records.  We 
have  simply  said  of  you  this: 

" :  keeps  restaurant  at street;  lives street; 

elected  to  council  in  1897;  his  record  indicates  weakness  of  character; 
is  recorded  as  not  voting  on  Commonwealth  Electric,  though  against  it 
after  veto;  opposed  General  Electric  ordinance  and  gang  organization  of 
council  committees ;  voted  to  proceed  with  Seventeenth  Ward  contest, 
for  prohibiting  action  on  franchise  ordinances  for  thirty  days  after 
introduction  and  for  appointment  of  special  compensation  committees; 
having  made  this  good  record  he  spoiled  it  by  continuous  support  of  the 
street  railways  in  their  fight  for  fifty-year  extensions;  he  cannot  be 
depended  on  and  should  be  retired." 

You  will  note  that  this  is  a  simple  recital  of  facts,  with  the  conclu- 
sion that  we  have  ventured  to  base  upon  it.  You  do  not  question  these 
facts,  but  raise  immaterial  issues  whether  you  have  violated  your  pledge 
of  two  years  ago  to  the  League  or  failed  to  sustain  the  mayor  on 
all  ordinances  that  have  come  up  for  consideration  in  the  council."  If 
you  will  now  quietly  read  our  recital  you  will  note  that  we  express 
no  opinion  on  these  points. 

34 


COUNCIL  REFORM  IN  CHICAGO 

Our  real  offence,  which  you  exaggerate  into  license  to  traffic  in  the 
personal  honor  of  mankind,"  is  merely  our  conclusion  that  you  cannot 
be  depended  on  and  should  be  retired."  We  concede  that  it  would  be 
quite  improper  for  us  to  pronounce  judgment  upon  your  fitness  for 
reelection  without  stating  with  accuracy  and  plainness  the  facts  upon 
which  it  rests.  It  may  even  yet  occcur  to  you  that  if  our  conclusion  is 
unsupported  by  the  facts  stated,  it  must  fall  to  the  ground.  Indeed,  if 
the  above  recital  of  your  votes  on  matters  of  vital  public  concern 
is  a  record  of  which  you  are  proud  and  which  entitles  you  to  reelection 
as  a  champion  of  public  as  against  corporate  interests,  we  are  entitled  to 
your  thanks  for  the  wide  publication  which  we  have  given  and  shall  yet 
give  it.  It  is  well  that  the  city  should  know  the  deeds  of  its  heroes  in 
the  council  arena.       It  is  our  humble  function  to  help  it  to  know  them. 

You  must  pardon  us  if  we  cannot  agree  with  you  as  to  the  reward  to 
which  your  service  in  the  council  entitles  you.  This  is  the  sole  issue. 
It  is  quite  immaterial  whether  I  am  a  "  theoretical  "  or  a  practical  " 
reformer.  The  question  is  upon  the  record  which  you  have  made.  The 
voters  of  your  ward  care  nothing  for  our  differences  of  opinion  respecting 
it,  but  I  can  assure  you  that  the  record  itself  is  of  exceeding  interest  to 
many  of  them  at  this  juncture.  However  we  differ  in  regard  to  prac- 
tical reformers  "  and  as  to  the  inferences  to  be  drawn  from  your  some- 
what wobbly  official  record,  we  may  at  least  cooperate  to  give  that 
record  the  widest  possible  publication. 

Yours  very  truly, 


President  Municipal  Voters'  League. 

The  publication  by  the  newspapers,  with  editorial 
comments,  of  this  retort  finished  the  work  of  making  a 
candidate  for  reelection  unavailable.  He  was  not  after- 
wards heard  from,  and  failed  of  renomination.  His 
successor  was  elected  with  the  endorsement  of  the  League. 

One  of  the  first  acts  of  the  League  upon  its  organization 
in  1896  was  to  oppose  the  renomination  by  a  good  con- 
stituency of  a  man  of  social  and  business  standing  whose 
record  was  good  except  as  to  a  few  votes  for  notorious 
measures.     The  intention  was  by  this  act  to  set  a  high 

35 


ESSAYS  AND  ADDRESSES 

standard  and  test  public  sentiment.     A  significant  cor- 
respondence followed: 

Chicago,  March  4,  1896. 


Pbes.  Municipal  Voters'  League, 

Dear  Sir  —  I  notice  in  the  Sunday  papers  that  your  organization  says 

that  it  cannot  endorse  Alderman of  the Ward  for 

reelection.  You  will,  I  trust,  pardon  me  when  I  say  that  in  this 
you  may  have  made  a  mistake,  as  I  judge  that  you  came  to  this  conclu- 
sion  from   what  has   been   said   to   you  by  the   parties  endorsing    Mr. 

.      I   have  known   Alderman for  some  time,  and 

I  have  no  hesitancy  in  saying  that  he  is  one  of  the  best  aldermen  in  the 
city  council ;  and  should  you  take  the  trouble  to  see  him  and  talk  with 
him,  you  will  find  that  in  every  instance  where  he  is  charged  with  having 
voted  for  a  so-called  boodle"  ordinance  it  was  not  done  corruptly, 
but  that  he  might  secure  votes  for  some  meritorious  measure  that  would 
benefit  the  whole  people. 

I  do  not  live  in  his  ward  and  have  no  other  interest  in  this  matter 
than  to  see  that  active,  earnest  and  honest,  capable  aldermen  are  elected 
to  the  council ;  and   I  urge  upon  your  committee  that  they  re-consider 

their  action  and  use  their  best  eflPorts  to  reelect  Alderman  ,   not 

in  the  interest  of  party  politics,  but  for  the  best  interests  of  this  great 
city  of  which  we  are  all  justly  proud ;  and  in  conclusion  I  desire  to  say 
that  I  owe  much  to  his  assistance  for  the  passing  of  the  Jackson  Blvd. 
ordinance. 

Respectfully  yours, 

[Signed  by  a  high  public  official.] 

Endorsed  —  I  have  known  Alderman for  more  than  twenty 

years  last  past,  and  believe  that  the  best  interests  of  the  city  will 
be  conserved  by  his  reelection. 

[Signed  by  three  republican  judges  on  the  bench  and  several 
citizens  of  high  standing,  all  being  of  the  party  to  which  the  candidate 
belonged.] 

The  following  reply  was  promptly  made  by  the  execu- 
tive committee  of  the  League : 

Chicago,  March  6,  1896. 
Hon. and  Others. 

Gentlemen  —  Your  communication  of  the  4th  instant  in  respect  to  the 
candidacy  of  Mr. for  reelection  as  alderman  from  the 

36 


COUNCIL  REFORM  IN  CHICAGO 

Ward  has  received  that  careful  consideration  by  the  executive  committee 
of  the  League  to  which  its  subject  matter  and  your  positions  and  standing 

entitle  it.      I  have  also  had  a  personal  interview  with  Mr. .    This 

reexamination  of  the  question  presented  has  confirmed  the  committee 
in  their  conclusion  that  the  League  cannot  endorse  Mr.  's  candi- 
dacy for  reelection.      This  conclusion  is  not  due  to  the  influence  of  Mr. 

's  friends,  as  you  suppose.     It  rests  solely  on  the  public  record  of 

Mr.  .      As  alderman,  he  voted  for  the  Universal   Gas,  Calumet 

and  Blue  Island,  General  Electric,  and  other  questionable  ordinances. 

You  say:  "You  will  find  in  every  instance  where  he  is  charged 
with  having  voted  for  a  so-called  '  boodle  '  ordinance  it  was  not  done 
corruptly,  but  that  he  might  secure  votes  for  some  meritorious  measure 
which    would    benefit    the    whole    people."      We    regard    this   defence 

of  Mr.  ,  which  is  put  forward  with  confidence  by  men  of  your 

standing,  as  painful  evidence  of  the  low  standard  by  which  the  public 
conduct  of  city  officials  has  come  to  be  measured  even  by  good  citizens. 
Gentlemen,    has  it  not  occurred    to   you   that   the   defence  which   you 

suggest  for   Mr.  ,    that   he   gave   his  vote   for   corrupt  measures 

in  exchange  for  votes  for  meritorious  ones,  is  a  defence  which  is  equally 
available  to  the  most  notorious  boodler  in  the  council  ?  Do  you  not 
know  that  this  is  one  of  the  most  insidious  and  common  forms  of  legis- 
lative corruption  ?  Would  you  have  a  reform  movement  endorse  the 
support  of  corrupt  ordinances  in  exchange  for  the  votes  of  their 
promoters  for  meritorious  measures?  We  cannot  believe  that  this 
is  what  the  public  expects  of  the  Municipal  Voters'  League.  It  is 
the  unanimous  opinion  of  the  executive  committee,  reached  after  careful 

and   unprejudiced   examination,  that  Mr.  's   official    record   does 

not  justify  the  renewal  of  his  commission  to  exercise  a  great  public  trust. 

Our  standard,  only  aggressively  honest  and  capable  men  for  city 
officials,  may  now  by  comparison  seem  high,  but  we  believe  it  to  be  the 
only  true  one.  We  may  not  at  once  secure  such  candidates  in  all  cases, 
but  we   can  at  least  make  public  the   records  of  all    candidates.      We 

intend  that  no  man  having  the  public  record  of  Mr.  shall  return 

to  the  council  as  the  representative  of  reform. 

Bv  order  of  the  Executive  Committee, 


President. 

The  publication  of  these  letters  made  a  sensation.    The 
supposed  writer  of  the  first,  on  whose  official  letter  head  it 

37 


ESSAYS  AND  ADDRESSES 

appeared,  announced  that  it  was  written  by  the  alderman 
himself,  and  that  he  signed  it  without  reading  it.  The 
others  also  informed  an  interested  public  that  they  en- 
dorsed the  letter  without  reading  it,  supposing  it  to  be 
"all  right."  The  correspondence  was  mailed  to  the 
registered  voters  of  the  ward.  The  press  published  and 
fully  discussed  it  editorially.  The  candidate,  who  had 
been  renominated  in  the  meantime,  failed  of  reelection 
by  some  eight  hundred  votes,  although  his  party  carried 
the  ward  for  town  officers  at  the  same  election  by  a  ma- 
jority of  about  twelve  hundred. 

The  open  headquarters  which  the  League  maintains 
for  about  two  months  prior  to  each  aldermanic  election, 
is  the  clearing  house  of  the  aldermanic  campaign.  It  is 
thi'onged  A\ith  party  representatives,  candidates,  and 
citizens.  These  come  seeking  to  influence  the  executive 
committee  for  or  against  particular  candidates,  both 
before  and  after  the  nominations  are  made.  Suggestions, 
remonstrances,  and  eulogies  pour  in  from  all  quarters. 
Blank  inquiries  are  mailed  to  all  candidates  as  soon  as 
announced  or  nominated.  Letters  of  inquiry  to  references 
follow.  Trained  employees  of  the  committee  scour  the 
city  for  information;  often  different  ones  working  sep- 
arately are  detailed  on  the  same  case.  All  who  come  are 
patiently  heard,  and  the  facts  are  carefully  ascertained. 
It  is  remarkable  how  quickly  the  machinery  employed 
usually  brings  to  the  committee  sufficient  facts  upon  which 
to  base  a  safe  conclusion.  As  the  campaign  progresses, 
candidates  often  bring  false  charges,  made  by  or  on  behalf 
of  opponents,  to  the  attention  of  the  committee.    A  care- 

38 


COUNCIL  REFORM  IN  CHICAGO 

ful  inquiry,  sometimes  a  "confrontation"  in  the  presence 
of  the  committee,  follows.  A  simple  bulletin  from  the 
League,  to  the  effect  that  it  has  been  investigated  and 
found  to  be  without  foundation,  pubHshed  in  the  news- 
papers lays  a  charge.  Thus,  incidentally,  the  League  is 
able  promptly  to  suppress  false  charges  and  keep  the 
contest  on  the  facts  and  the  real  issue. 

The  president  and  secretary,  at  great  personal  sacri- 
fice, give  practically  their  whole  time  to  the  work  during 
the  active  campaign.  They  are  assisted  by  the  best  ob- 
tainable employees.  The  executive  committee  meets  for 
an  hour  or  more  late  in  the  afternoon  of  almost  every  day. 
No  final  action  on  candidates  is  ever  taken  without  its 
consideration  and  vote. 

EFFECT  ON  NOMINATIONS 

The  officers  of  the  League  are  coming  more  and  more 
to  be  consulted  in  advance  concerning  proposed  nomina- 
tions. Party  managers  in  many  wards,  where  its  support 
has  become  vital  to  success,  submit  names  of  proposed 
candidates.  Several  are  often  suggested  and  rejected 
before  one,  after  careful  inquiry,  is  approved.  Then,  too,  a 
proposed  candidate,  who  is  regarded  as  objectionable,  and 
his  supporters  are  frequently  called  in  and  advised  that  the 
League  will  oppose  his  nomination  and  election  unless  it 
can  be  satisfied  of  his  fitness.  The  confidences  of  these 
conferences  are  faithfully  kept.  Party  managers  are 
given  full  credit  for  fit  nominations,  however  much  they 
may  have  been  influenced  by  the  committee.  No  announce- 
ment is  ever  made  that  a  particular  party  nomination  has 

39 


ESSAYS  AND  ADDRESSES 

been  thus  forced  by  the  League.  It,  however,  often  par- 
ticipates in  support  of  the  better  candidate  at  contested 
primaries.  It  is  its  policy  not  to  suggest  candidates  in  the 
first  instance,  but  rather  to  pass  on  those  named  by  others. 
When  necessary  in  a  given  ward,  in  order  to  force  a  good 
nomination  or  to  have  at  least  one  fit  candidate,  it  promotes 
the  nomination  of  an  independent  by  petition.  When  the 
candidates  are  in  nomination  it  takes  an  active  part  in  the 
wards  where  there  is  danger  of  the  election  of  unfit  men. 

INFLUENCE  ON  ELECTIONS 
Such,  in  substance,  are  the  methods  of  the  Municipal 
Voters'  League.  What  are  the  results?  It  has  now  par- 
ticipated in  five  successive  aldermanic  campaigns,  each 
involving  the  election  of  thirty-four  aldermen,  being  one- 
half  of  the  city  council.  In  its  first  campaign,  that  of  1896, 
twenty  candidates  having  its  endorsement,  two  of  them 
independents,  were  elected.  Five  others  were  given  a 
preference  over  their  opponents.  Of  the  first  class,  fifteen 
throughout  their  term  of  two  years  resisted  all  adverse 
influences  and  stood  faithfully  for  public  interests.  All 
the  others  sooner  or  later  joined  "the  gang."  The  League 
in  1898,  in  its  prelininary  report  on  the  retiring  members 
of  the  council  elected  in  1896,  recommended  the  faithful 
fifteen  for  reelection  and  nineteen  for  defeat.  Of  the 
first  group  three  declined  renominations ;  the  others  were 
renominated  and  eleven  of  them  reelected.  Of  the  nine- 
teen condemned  by  the  League  ten  failed  of  renomination 
and  all  but  three  of  reelection.  The  street  railway  fight 
being  on,  an  unusually  large  number  of  ex-members  of 

40 


COUNCIL  REFORM  IN  CHICAGO 

bad  record  sought  in  this  campaign  to  return  to  the 
council.  Of  twenty-five  of  these  but  six  were  nominated 
and  three  elected. 

The  results  of  the  League's  work  in  ridding  the  city 
of  the  notorious  council  of  1895  are  in  some  measure  indi- 
cated by  the  following  tables: 

FIRST  YEAR,   1896* 

Outgoing  aldermen  with  bad  records 26 

Failed  to  secure  renominations 16 

Renominated  and  reelected 6 

Renominated  and  defeated 4 

The  League's  recommendations  were  followed  in 
twent}^-five  wards.  In  five  it  was  unsuccessful.  In  four 
it  made  no  recommendations. 

SECOND  YEAR,   1897 

Outgoing  aldermen  with  bad  records 27 

Failed  to  secure  renominations 15 

Renominated  and  reelected 3 

Renominated  and  defeated 9 

The  League's  recommendations  were  followed  in 
seventeen  wards.  In  thirteen  it  was  unsuccessful.  In 
four  it  made  no  recommendations. 

THIRD  YEAR,   1898 

Outgoing  aldermen  with  bad  records 19 

Failed  to  secure  renominations 10 

Renominated  and  reelected 3 

Renominated  and  defeated 6 

*The  League  recommended  but  two  for  reelection. 

41 


ESSAYS  AND  ADDRESSES 

The  League's  recommendations  were  followed  in 
twenty-three  wards.  In  eight  it  was  misuccessful.  In 
three  it  made  no  recommendations. 

FOURTH  YEAR,   1899 

Outgoing  aldermen  with  bad  records 23 

Failed  to  secure  renominations 18 

Renominated  and  reelected 2 

Renominated  and  defeated 3 

The  League's  recommendations  were  followed  in 
twenty-five  wards.  In  each  of  two  wards,  where  vacancies 
were  to  be  filled,  the  candidate  of  each  party  commended 
by  the  League  succeeded.  The  Democratic  candidate  for 
mayor  carried  nearly  all  the  wards.  In  seventeen,  wherein 
he  had  majorities.  Republican  candidates  for  the  council 
having  the  endorsement  of  the  League  succeeded. 

FIFTH  YEAR,   1900 

Outgoing  aldermen  with  bad  records 16 

Failed  to  secure  renominations 5 

Renominated  and  reelected 9 

Renominated  and  defeated 1 

Renominated  by  petition  and  defeated.  .  1 
The  League's  recommendations  were  followed  in 
seventeen  wards.  In  seven  others,  it  commended  all  the 
candidates  as  qualified.  Twenty-five  of  the  thirty-seven 
successful  candidates  had  its  endorsement  over  all  oppo- 
nents or  its  commendation  with  others.  Three  of  these  ran 
as  independents.  In  this  campaign  the  party  organiza- 
tions in  several  of  the  worst  wards  openly  joined  forces 

42 


COUNCIL  REFORM  IN  CHICAGO 

to  return  members  condemned  by  the  League.  To  this 
brazen  performance  is  due  the  reelection  of  so  many 
condemned  members  this  year.  The  "gang"  of  1895  is  no 
more.  Four  only  of  its  members,  now  in  a  hopeless 
minority,  linger  on  the  scene  of  their  former  exploits  to 
mourn  the  good  old  days  when  "aldermanic  business" 
was  good.  The  feeble  band  of  faithful  members  of  five 
years  ago  became  a  minority  of  one-third,  enough  to  sus- 
tain the  veto  of  the  mayor,  after  the  first  campaign  of  the 
League;  two  years  later  it  became  a  majority;  one  year 
ago  it  rose  to  two-thirds  of  the  council  and  organized  its 
committees  on  a  non-partisan  basis. 

These  results  are  due  to  a  growing  disregard  by  the 
voters  of  party  names,  and  to  entire  confidence  in  the 
singleness  of  purpose  and  freedom  from  partisan  bias  of  the 
League.  There  has  been  no  waiting  for  ideal  conditions 
as  a  basis  for  reform.  The  League  has  seized  and  used 
the  means  at  hand.  Party  organizations,  fattened  on  the 
spoils  of  a  great  city,  by  force  of  an  aroused  publie 
opinion  have  become  for  the  moment,  if  somewhat  halting,, 
at  least  fairly  efficient  instruments  of  reform. 

The  gain  cannot  be  shown  by  mere  statistics.  The 
attempt  to  secure  the  election  of  men  who  are  both  honest 
and  capable  has  in  large  measure  succeeded.  Each  year 
it  has  been  found  easier  to  secure  qualified  candidates. 
An  increase  in  salary  from  $3  per  week  to  $1,500  per 
year  has  contributed  to  this  end.  The  council  now  con- 
tains many  men  of  character  and  force,  some  of  them 
being  citizens  of  prominence  and  large  personal  interests. 
While  some  untried  men  commended  by  the  League  fall 

43 


ESSAYS  AND  ADDRESSES 

by  the  way,  about  three-fourths  of  them  remain  true.  No 
general  "boodle  ordinance"  has  been  passed  over  the 
mayor's  veto  since  the  first  election  in  which  the  League 
participated.  Public  despair  has  given  place  to  a  growing 
belief  that  the  city  government  may  be  redeemed  and 
made  representative  of  public  interests.  It  is  no  longer 
a  good  investment  for  public  service  corporations  to 
advance  large  sums  for  the  "campaign  expenses"  of 
notorious  boodlers.  It  has  again  become  an  honor  to  be 
a  member  of  the  Chicago  council.  A  single  term  of  service 
brings  a  capable  man  an  honorable  city  reputation. 

THE  STREET  RAILWAY  PROBLEM 

These  changes  have  been  forced  against  the  most 
powerful  opposing  forces.  The  main  franchises  of  the 
great  street  railway  corporations  of  Chicago  are  soon  to 
expire.  From  1896  they  actively  sought  renewals  on  their 
own  terms.  By  grossly  improper  means,  they  secured  in 
1897  the  passage  in  the  legislature  of  the  so-called  "Allen 
bill,"  permitting  extensions  of  street  railway  franchises 
for  fifty  instead  of  twenty  years  as  before.  After  the 
enactment  of  this  law  certain  of  the  companies  again  and 
again  brought  every  possible  influence  to  bear  on  the 
members  of  the  Chicago  council  to  secure  fifty-year  exten- 
sions in  utter  disregard  of  pubhc  rights.  It  is  believed 
that  as  much  as  $50,000  each  was  finally  offered  for  votes. 
The  council  stood  firm.  A  clear  majority  spurned  all 
improper  advances.  The  attempt  ended  in  complete 
failure.    Late  in  1898  it  was  abandoned. 

The  enactment  of  the  "Allen  bill"  led  to  a  remarkable 

44 


COUNCIL  REFORM  IN  CHICAGO 

demonstration  of  the  irresistible  power  of  an  aroused  and 
persistent  public  opinion 

WHAT  IS  THE  NEXT  STEP? 

Those  whose  fortune  it  has  been  to  direct  the  hand-to- 
hand  work  of  the  Municipal  Voters'  League  of  Chicago 
know  full  well  that  but  a  beginning  has  been  made,  that 
only  the  edge  of  a  great  problem  has  been  touched.  A 
powerful  and  resourceful  enemy  is  still  at  bay,  ready  to 
take  instant  advantage  of  any  failure  of  public  leadership. 
The  question  is  how  to  make  what  has  been  gained  the 
basis  for  the  recovery  of  representative  government.  It 
is  clear  that  disinterested  and  intelligent  leadership  is  alone 
wanting.  It  is  also  apparent  that  the  methods  thus  far 
employed  by  the  League  cannot  be  relied  upon  to  work  a 
permanent  cure  of  the  disease.  This  is  private  greed.  It 
appears  in  the  form  of  a  copartnership  of  the  bosses, 
masquerading  in  the  names  of  the  national  political  parties, 
and  the  public  service  corporations.  These  monsters, 
clasped  in  a  close  embrace,  wallow  together  in  municipal 
spoils.  One,  perhaps  both,  must  be  destroyed.  They  are 
the  source  of  municipal  misrule. 

Recent  events  in  Cliicago  give  point  to  these  observa- 
tions. The  influence  of  the  League  was  never  more  potent 
than  in  the  late  municipal  campaign.  Fifty-five  of  the 
eighty  candidates  voted  for  at  the  polls  voluntarily  came 
in,  signed  the  League  platform,*  and  on  it  appealed  for 

*The  League  Platform 

It  is  my  belief  that  the  office  of  alderman  is  one  involving  service  to 
the  whole  public  and  non-political  in  its  nature.      I,   therefore,  believe 

45 


ESSAYS  AND  ADDRESSES 

public  support.  Twenty-five  of  these  were  elected.  The 
pledge  to  organize  the  council  committees  on  a  non-parti- 
san basis  of  integrity  and  fitness  was  so  definite  that  it 
was  expected  it  would  be  faithfully  kept.  But  the  city  is 
this  year  to  be  redistricted.  The  Democrats  having  for  the 
past  two  years  made  an  inexcusable  number  of  bad 
nominations,  the  Republicans  after  the  election  found 
themselves  in  a  large  majority.  Party  pressure  proved 
too  strong  to  resist.     All  but  one  of  the  Republicans 

in  organizing  the  council  committees  on  a  non-partisan  basis  of  integrity 
and  fitness;  and  I  further  believe  that  in  redistricting  this  city  the 
question  should  be  decided  upon  the  basis  of  equality  of  population, 
facilities  for  voting,  and  due  regard  to  natural  boundaries;  and  that  the 
city  should  not  be  gerrymandered  in  the  interest  of  any  political  party. 

I  believe  that  the  finances  of  the  city  should  be  so  regulated  that 
the  appropriations  cover  the  actual  necessities  and  the  expenditures 
be  kept  within  the  revenues.  The  city  should  have  a  system  of  auditing 
and  accounting  as  strict  and  clear  as  that  of  any  well-regulated  business 
corporation. 

I  believe  that  the  city  should  receive  adequate  compensation  for  all 
grants  to  private  persons  or  corporations  of  special  privileges  in,  over, 
under,  or  across  the  public  highways,  or  for  the  use  of  public  property. 

I  believe  that  ordinances  conferring  franchises  for  street  railways, 
telephones,  and  similar  public  utilities  should  be  limited  to  a  period  not 
exceeding  twenty  years. 

I  believe  that  all  such  ordinances  to  a  given  company  should  expire 
at  the  same  time. 

I  believe  that  all  such  ordinances  should  provide  the  opportunity  for 
public  ownership  on  fair  and  reasonable  terms. 

I  believe  in  the  merit  system  of  civil  service  and  in  the  strict 
enforcement  of  the  present  civil  service  law. 

If  elected  I  will  spend  requisite  time  in  looking  after  the  physical 
and  sanitary  needs  of  my  ward. 

I  place  this  platform  before  my  constituents  and  the  people  of 
Chicago  and  pledge  myself  to  work  and  to  vote  in  committees  and 
on  the  floor  of  the  council  to  carry  out  its  principles. 

46 


COUNCIL  REFORM  IN  CHICAGO 

entered  a  party  caucus  and  there  named  the  committees  of 
the  council  for  this  year.  While  care  was  taken  to  con- 
stitute the  committees  about  as  last  year,  their  published 
defence  of  this  action  is  not  well  received.  The  League 
promptly  denounced  the  party  caucus  as  an  open  betrayal 
of  a  solemn  pledge.    It  is  generally  so  regarded.* 

Thus  the  step  toward  non-partisanship  taken  last  year 
has  been  retraced.  JNIen  elected  to  act  for  the  people  have 
betrayed  their  pledges  in  order  to  represent  in  the  council 
the  local  bosses  of  a  national  political  party.  This  un- 
looked-for reverse  has  forced  the  executive  committee  of 
the  League  to  consider  whether  the  time  is  not  ripe  for 
the  next  great  step  in  municipal  reform.  They  have  been 
driven  to  the  conclusion  that  the  law  should  be  so  amended 
as  to  prohibit  the  appearance  on  the  official  ballot  of  can- 
didates for  municipal  office  under  party  names,  or  their 
nomination  except  by  petition.  Quite  likely  such  an 
amendment  will  be  urged  in  the  next  legislature.  Until 
this  reform  shall  be  secured  by  law,  the  League  is  likely 
more  and  more  to  promote  independent  candidacies.  It 
views  with  increasing  distrust  the  presence  in  municipal 
politics  of  a  power  that  can  compel  men  of  standing  openly 
to  betray  their  most  solemn  promises  to  the  people. 
Whatever  the  discouragement  of  the  moment,  there  is 
no  disposition  to  falter.  The  League  will  go  forward. 
The  movement  for  which  it  stands  must  be  persistent. 

*  This  is  the   last   time   that   the  council  has  been  organized  on  a 
partisan  basis.  —  Editors. 


47 


THE  CIVIL   SERVICE   SITUATION* 

/^IVIL  sei'vice  reform,  in  its  progress,  has  passed  the 
experimental  stage.  The  merit  system  is  now  gen- 
erally acknowledged  to  be  a  practical,  and  indeed  a 
fundamental  reform.  It  everywhere  means  open  com- 
petitive examination  for  appointment  to  the  lower  grades 
of  the  civil  service,  with  promotion  to  its  higher  grades 
solely  upon  ascertained  fitness.  Its  friends,  fully  con- 
vinced of  its  efficacy  to  cure  the  monstrous  abuses  of  the 
spoils  system,  insist  upon  its  extension  to  the  entire  public 
service, —  National,  State,  and  municipal.  Its  enemies,  at 
last  aware  that  it  is  more  than  a  transient  dream  of 
theorists  and  is  in  fact  a  force  that  threatens  to  overwhelm 
them,  have  united  for  its  overthrow.  Beaten  at  every 
point  in  argument,  its  opponents  now  at  some  points 
oppose  it  by  open  appeals  to  private  and  partj'^  greed  for 
spoils, —  at  others  by  attempts  to  direct  its  operation. 
Where  afraid  to  attempt  its  overthrow  by  direct  assault, 
they  seek  to  destroy  it  by  "a  warfare  of  underground 
sapping  and  mining"  (Carl  Schurz). 

Civil  service  reformers  long  appealed  for  an  oppor- 
tunity to  demonstrate  the  utility  of  the  merit  system. 
The  spoilsmen  at  first  made  no  attempt  to  meet  its  claims 
by  argument.  They  simply  applied  to  its  advocates  such 
choice  names  as  "man  milliners,"   "theorists,"   "literary 

*  From    internal    references,    it   is    probable    that    this  article  was 
written  during  the  latter  part  of  the  year  1897. 

48 


THE   CIVIL   SERVICE   SITUATION 

fellers,"  "Sunday-school  politicians,"  and  the  like.  This 
proving  insufficient  to  deter  the  reformers,  the  spoilsmen 
offered  pretended  arguments  to  the  effect  that  the  merit 
system  is  un-American,  calculated  to  create  a  life  tenure, 
and  generally  visionary  and  impracticable.  But  in  spite 
of  their  false  cries,  under  the  most  adverse  conditions, 
often  subject  to  the  hostility  of  appointing  officers,  its 
appointees  thrown  in  among  hordes  of  spoils  barbarians, 
the  merit  system  has  gradually  won  its  way  into  popular 
favor.  In  the  great  departments  at  Washington,  and  in 
the  revenue  and  post  offices  of  the  country,  it  is  now  able 
to  show  what  may  be  expected  of  it  everywhere  under 
favorable  conditions,  after  the  spoilsmen  have  been  driven 
out. 

One  of  the  most  notable  achievements  of  civil  service 
reform  was  its  embodiment  in  the  constitution  of  New 
York  in  1894.  This  seemed  to  prepare  the  way  for  its 
application  without  further  resistance  "to  all  appoint- 
ments in  the  ci^^l  service  in  all  the  public  departments  of 
the  State."  But  the  spoilsmen  of  New  York  are  perhaps 
the  most  lawless  and  shameless  specimens  of  the  evil  brood 
to  which  they  belong.  Indeed,  under  the  recent  rule  of 
Hill  and  the  present  reign  of  Piatt,  the  State  seems,  for  the 
time  being,  to  have  lost  all  but  the  forms  of  popular 
government.  The  governor  and  majority  members  of  the 
legislature  in  no  sense  represent  the  people.  They  merely 
register  the  will,  without  regard  to  public  interests,  of  an 
odious  and  irresponsible  political  pirate.  These  forces, 
thus  directed,  have  persistently  neglected,  since  the  adop- 
tion of   the   constitutional   provision   in    1894,   to   enact 

49 


ESSAYS  AND  ADDRESSES 

appropriate  legislation  to  give  it  full  eifect  as  commanded 
by  the  constitution  itself.  They  have  even  contended  in 
the  courts  that  the  insufficient  civil  service  act  of  1883  was 
annulled  by  the  adoption  of  the  constitution,  and  have 
strenuously  denied  that  the  constitutional  provision  is  self- 
executing. 

The  courts  of  New  York,  however,  remain  true.  In- 
deed, these  courts  constitute  the  one  political  institution  of 
the  State  which,  under  the  Piatt  reign,  remains  responsive 
to  public  interests  and  faithful  to  the  purpose  of  its 
creation.  They  have,  from  the  outset,  liberally  interpreted 
the  civil  service  laws  and  given  them  full  effect  in  letter 
and  spirit.  The  Court  of  Appeals,  in  view  of  its  record 
on  this  subject,  has  the  right  to  say, —  as  it  does  in  the  case 
of  People  vs.  Roberts  (148  N.  Y.  364):  "This  court, 
upon  more  than  one  occasion,  has,  with  entire  unanimity, 
expressed  its  approval  of  the  principle,  and  exercised  all 
of  its  powers  in  every  proper  case  in  aid  of  all  laws  in- 
tended to  carry  out  the  idea."  That  great  court  has  also 
declared  within  this  year  that  "the  duty  rests  upon  the 
legislature  and  the  courts  to  enforce  the  civil  service  pro- 
visions of  the  constitution  in  their  letter  and  spirit." 
Chittenden  vs.  Wurster  (152  N.  Y.  364).  The  courts  of 
the  State  have  again  and  again  declared  the  constitutional 
provision  to  be  self -executing  to  the  extent  that  appoint- 
ments made  contrary  to  it  are  illegal,  and  have  held  that 
the  question  to  what  extent  competitive  examination  for 
appointment  is  practicable  is  a  judicial  one.  In  the  ab- 
sence of  appropriate  legislation  to  give  full  effect  to  the 
constitutional  requirements  that  "appointments  and  pro- 

50 


THE   CIVIL   SERVICE   SITUATION 

motions  in  the  civil  service  of  the  State,  and  of  all  civil 
divisions  thereof,  .  .  .  shall  be  according  to  merit 
and  fitness,  to  be  ascertained,  so  far  as  practicable,  by 
examination,  which  so  far  as  practicable,  shall  be 
competitive,"  they  have  given  full  effect  to  the  insufficient 
civil  service  act  of  1883. 

The  New  York  legislature  at  its  last  session  under  the 
leadership  of  the  governor  of  the  State,  as  cheap  and  nasty 
a  spoilsman  as  has  yet  appeared  anywhere,  passed  an  act 
providing  for  two  examinations  to  ascertain  the  "merit 
and  fitness"  of  candidates  for  appointment, —  one  by  the 
civil  service  commission  to  determine  their  relative  "merit," 
and  one  by  or  under  the  direction  of  the  appointing  officer 
to  satisfy  him  as  to  their  "fitness."  Each  examination  is 
to  cover  one-half  of  the  rating  of  candidates  on  the  scale 
of  one  hundred.  It  is  not  even  provided  that  the  so-called 
"examinations"  to  ascertain  "fitness"  shall  be  com- 
petitive, or  that  it  shall  be  public  or  made  matter  of  record. 
It  may  be  conducted  by  "some  person  or  board  designated 
by  the  person  holding  such  power  of  appointment," — in 
fact  by  a  political  committee,  the  chief  of  a  party  machine, 
or  even  "the  barkeeper  of  the  nearest  saloon,"  if  so  desig- 
nated by  the  appointing  officer. 

Mr.  Schurz,  in  his  powerful  address  of  protest  to  the 
governor,  suggested  that  this  scheme  of  two  examinations 
to  ascertain  the  "merit"  and  "fitness"  of  candidates  was 
the  same  as  if  in  case  a  candidate  was  required  to  be  "hale 
and  hearty,"  "one  physician  should  examine  him  as  to 
whether  he  was  hearty  and  the  other  as  to  whether  he  was 
hale."    It  is  expected  that  the  Court  of  Appeals  will  make 

51 


ESSAYS  AND  ADDRESSES 

short  work  of  this  precious  scheme  to  evade  the  constitu- 
tion. The  court  has  abeady,  in  a  case  decided  since  the 
passage  of  the  act,  said :  ''It  is  said  that  each  officer  having 
appointments  to  make  could  himself  examine  the  appli- 
cants for  position,  and  in  that  way  determine  who  should 
he  the  appointee  by  a  competitive  examination.  Un- 
doubtedly, hut  it  will  readily  he  seen  that  this  system 
would  practically  nullify  the  civil  service  law  and  hring 
it  into  disrepute/"    Hoight,  J.  (152  N.  Y.  356.) 

The  order  of  President  Cleveland  of  May  6,  1896, 
adding  over  forty  thousand  positions  to  the  national 
classified  service  and  so  revising  the  rules  as  to  raise  the 
presumption  that  all  persons  serving  in  the  executive  de- 
partments of  the  government  are  included  unless 
expressly  excepted,  was  regarded  not  only  as  the  greatest 
advance  of  the  reform  but  as  practically  completing  what 
might  be  done  by  executive  action  without  further  legis- 
lation. Mr.  Cleveland's  administration  also  sought  to 
solve  the  difficult  problem  of  bringing  the  fourth-class 
postmasters  within  the  classified  service  by  the  consolida- 
tion of  smaller  offices  with  the  larger  classified  offices  in 
such  a  way  as  to  make  the  smaller  offices  mere  sub-stations 
and  their  present  postmasters  superintendents  or  clerks 
within  the  classified  service  of  the  principal  offices.  Post- 
master General  Wilson  carried  this  plan  far  enough  to 
test  its  practicability  and,  by  about  one  hundred  such  con- 
solidations, to  effect  an  annual  saving  in  expense  of 
$43,000.  To  extend  the  reform  the  postmaster  general 
sought  a  transfer  by  the  last  Congress  of  funds  from  the 
appropriation  for  postmasters'  salaries  to  that  for  clerk 

52 


THE  CIVIL   SERVICE   SITUATION 

hire,  asking  for  a  total  appropriation  of  $500,000  less  on 
this  account  than  before.  Congress  not  only  refused  this 
reasonable  request,  but  actually  curtailed  the  power  of  the 
postmaster  general  to  make  such  consolidations  by  limit- 
ing them  to  the  county  of  the  principal  office  and  five  miles 
from  the  corporate  limits  of  the  city  of  such  office.  In  vain 
was  the  plea  of  the  postmaster  general  that  the  extensive 
realization  of  the  plan  would  improve  the  service,  insure 
prompter  and  better  accounting,  require  less  bookkeeping 
and  correspondence,  secure  better  inspection  and  super- 
vision, increase  and  improve  the  facihties  of  the  people, 
and  thereby  augment  the  revenues  and  greatly  reduce 
the  expenditures.  Mr.  Schurz,  in  his  last  annual  address 
as  president  of  the  National  Civil  Service  Reform  League, 
very  properly  characterizes  this  performance. 
He  says: 

Look  at  this  spectacle.  The  representatives  of  the  peo- 
ple in  Congress,  charged  with  the  duty  and  entrusted  with 
the  power  of  taking  care  of  the  people's  convenience  and  of 
the  people's  money,  deliberately  put  aside  a  proposition 
submitted  to  them  by  a  faithful  officer  of  the  government 
to  promote  the  people's  convenience,  and  to  save  the  peo- 
ple's money  —  nay,  they  tell  that  officer  that  he  shall  not  go 
on  promoting  the  people's  convenience,  improving  the 
people's  service,  and  saving  the  people's  money.  Is  it  too 
much  to  say  that  this  means  robbing  the  people  of  that 
money  which  might  be  saved  and  is  now  unnecessarily  ex- 
pended, and  of  the  accumulating  millions  henceforth  to 
be  unnecessarily  expended?  And  why  all  this?  The 
reason  is  notorious.  This  was  done  because  the  consoli- 
dated post  offices  would  pass  under  the  civil  service  rules, 
and  members  of  Congress  would  have  fewer  postmaster- 
ships  to  distribute  among  their  hangers-on.  The  plan  was 
arrested,  because  it  was  good.     .     .     .     Is  it  not  time  that 

53 


ESSAYS  AND  ADDRESSES 

good  citizens  should  unite  to  tell  the  politicians  in  language 
vigorous  enough  to  be  heeded  that  this  outrageous  trifling 
with  the  people's  money  must  stop? 

The  Repubhcan  platform  of  1896  declares  that  the  civil 
service  law  "shall  be  thoroughly  and  honestly  enforced 
and  extended  wherever  practicable."  Mr.  McKinley  him- 
self definitely  promised,  in  his  letter  of  acceptance,  that 
his  party  "will  take  no  step  backward  upon  this  question. 
It  will  seek  to  improve  but  never  to  degrade  the  public 
service."  These  declarations,  especially  in  view  of  Mr. 
McKinley 's  excellent  record  on  the  subject  and  the 
dangerous  attitude  of  the  opposition,  led  the  friends 
of  the  merit  system  in  large  numbers  to  support  his 
candidacy,  and  they  rendered  no  small  service  in  se- 
curing his  triumphant  election.  Yet,  despite  all  this,  the 
spoilsmen  of  the  Republican  party  have  now  for  months 
openly  advocated  the  repudiation  by  the  president  of  his 
personal  and  party  pledges  in  the  interest  of  what  they 
are  pleased  to  term  a  "rational  civil  service."  So  noisy 
and  confident  did  they  become  that  in  July  last  there  was 
serious  fear  that  the  rules  were  to  be  extensively  amended 
in  the  interest  of  the  spoilsmen.  Instead  of  this  threatened 
calamity,  the  President  by  executive  order  of  July  28, 
1897,  amended  the  rules  so  as  to  provide  that  "no  removal 
shall  be  made  from  any  position  subject  to  competitive 
examination  except  for  just  cause,  and  upon  written 
charges  filed  with  the  head  of  the  department  or  other 
appointing  officer,  and  of  which  the  accused  shall  have  full 
notice  and  opportunity  to  make  defence."  It  is  not  too 
much  to  say  that,  under  all  the  circumstances,  this  order 

54 


THE   CIVIL   SERVICE   SITUATION 

is  one  of  the  greatest  victories  of  the  reform.  Prior  to  the 
adoption  of  the  lUinois  act  of  1895,  reformers  hesitated  to 
place  any  restraint  upon  the  power  of  removal  for  any 
reason  satisfactory  to  the  appointing  officer.  It  was  be- 
lieved, with  good  reason,  that  such  officers  would  not  be 
apt  to  remove  efficient  subordinates  to  make  way  for 
others,  if  obliged  to  take  them  from  the  eligible  list.  But 
it  was  found  that  injustice  was  often  done  both  to  the 
service  and  to  individuals.  The  framers  of  the  Illinois 
statute  took  the  first  step  in  advance  by  providing  that 
"no  officer  or  employee  in  the  classified  service  .... 
shall  be  removed  or  discharged  except  for  cause,  upon 
written  charges  and  after  an  opportunity  to  be  heard  in 
his  own  defence."  From  this  provision  laborers  and  "  per- 
sons having  the  custody  of  public  money,  for  the  safe- 
keeping of  which  another  has  given  bonds"  (Sec.  12),  are 
excepted. 

These  provisions,  it  will  be  observed,  do  not  undertake 
to  define  what  causes  shall  be  sufficient  to  justify  removals. 
It  is  not  believed  that  they  give  to  those  in  the  classified 
service  any  vested  right  to  continue  therein,  or  even  to 
appeal  to  the  courts  to  determine  whether  any  alleged 
cause  of  removal  is  sufficient  to  justify  it.  They  rather 
serve  to  protect  the  classified  service  from  arbitrary  and 
unjust  removals  by  requiring  appointing  officers  to  make 
matter  of  public  record,  with  an  opportunity  to  be  heard, 
the  reasons  for  their  action.  This  will  no  doubt  operate  as 
a  great  check  upon  improper  removals.  In  this  view,  the 
recent  decisions  by  certain  of  the  federal  courts,  holding 
that  the  new  rule  does  not  create  rights  which  the  courts 

55 


ESSAYS  AND  ADDRESSES 

will  enforce,  must  be  regarded  as  sound.  The  president 
may  rigidly  enforce  the  rule  as  binding  upon  appointing 
officers,  though  those  in  the  classified  service  derive  no  legal 
rights  under  it. 

The  civil  service  situation  in  Chicago  is  just  now  crit- 
ical and  of  special  interest.  Our  statute  can  only  be 
properly  interpreted  by  a  study  of  its  relation  to  the 
earlier  legislation.  It  is  not  a  pioneer  in  the  field  of 
civil  service  reform.  It  follows  the  present  English  sys- 
tem, the  national  act  of  1883,  the  Massachusetts  statute 
of  1884,  and  the  New  York  statute  of  1883  and  consti- 
tutional provision  of  1894.  In  England  a  change  of  ad- 
ministration affects  only  the  directing  heads  of  the  great 
departments  of  government,  the  prime  minister  himself 
having  only  the  appointment  of  his  private  secretary. 
Under  our  federal  statute,  by  executive  action  of  all  the 
presidents  since  1883,  the  rules  have  been  gradually  ex- 
tended to  include  disbursing  officers  and  all  but  the  heads 
and  immediate  subordinates  of  the  great  departments, 
revenue  and  post  offices  of  the  government. 

The  New  York  statute  of  1883  was  but  a  first  and 
cautious  step.  From  its  operation  were  excluded  "offi- 
cers elected  by  the  people,  and  subordinates  of  any  such 
officer  for  whose  errors  or  violation  of  duty  such  officer 
is  financially  responsible,  and  the  head  or  heads  of  any 
department  of  the  city  government"  (Section  8).  The 
Massachusetts  act  excepts  from  its  operation  only  "elec- 
tive and  judicial  officers  and  officers  whose  appointments 
are  subject  to  confirmation  by  the  executive  council,  a 
city    council,    or    a    school    committee,"    "heads    of    any 

56 


THE   CIVIL   SERVICE   SITUATION 

principal  department  in  a  city,"  and  a  few  others.  The 
constitution  of  New  York  in  1894  went  still  further 
in  providing  that  "appointments  and  promotions  in 
the  civil  service  of  the  State,  and  of  all  civil  divisions 
thereof,  ....  shall  be  according  to  merit  and 
fitness,  to  be  ascertained,  so  far  as  practicable,  by 
examination,  which  so  far  as  practicable,  shall  be  com- 
petitive." 

The  Illinois  statute  was  the  result  of  this  experience. 
It  was  based  directly  on  the  National,  New  York,  and 
Massachusetts  acts.  It  differs  from  these  statutes  only 
in  that  it  goes  further  and  is  more  stringent  in  its  pro- 
visions for  carrying  into  effect  the  great  purpose  which 
they  all  express.  None  of  the  other  acts  and  rules  under 
them  (until  this  year),  for  example,  placed  any  restric- 
tions upon  removals.  Our  statute  provides  against 
removals,  except  as  to  "laborers  or  persons  having  the 
custody  of  public  money  for  the  safekeeping  of  which 
another  person  has  given  bonds,"  without  written  charges 
and  an  opportunity  to  the  person  affected  to  be  heard. 
The  penalties  for  violation  of  the  act  are  also  more 
severe  than  for  violations  of  the  earlier  statutes. 

Our  statute  was,  in  fact,  intended  to  express  the  re- 
sults of  the  entire  experience  under  similar  measures  in 
this  country  prior  to  its  enactment  and  to  improve  upon 
them.  It  was  hailed  the  country  over  as  the  most  perfect 
statute  on  the  subject  and  as  the  one  best  adapted  to  se- 
cure the  reform  which  is  so  earnestly  desired  by  all  good 
citizens. 

Thus  it  appears  that  the  legislation  on  this  great  sub- 

37 


ESSAYS  AND  ADDRESSES 

ject  has  not  tended  to  become  less,  but  more  and  more, 
inclusive.  The  national  act  first  applied  only  to  a  few 
thousand  places,  including  all  but  heads  of  the  great 
departments  and  offices,  and  a  few  others.  The  excluded 
"head  or  heads  of  any  department"  of  the  New  York  act 
has  become  the  "heads  of  any  principal  department"  in 
the  statute  of  Illinois.  Unrestricted  removals  under  all 
the  other  acts  give  place  in  our  statute  to  removals,  in 
most  cases,  only  for  cause,  to  be  ascertained  upon  written 
charges  after  an  opportunity  for  the  accused  to  be  heard. 
We  have  not  merely  followed  the  lead  of  others,  adopt- 
ing their  statutes  with  the  liberal  interpretation  of  their 
courts,  but  have  done  more.  Our  statute  was  intended 
to  place  Illinois  at  the  head  of  the  powerful  forces  which 
are  to-day  striving  to  secure  an  orderly  administration  of 
government. 

This  act  was  adopted  by  an  overwhelming  popular 
majority  at  tlie  Spring  election  of  1895.  Mayor  Swift 
found  most  of  the  departments  filled  with  spoilsmen  and 
their  retainers.  No  one  contends  that  these  products  of 
a  bad  system  should  have  been  retained,  or  blames  him 
for  their  removal.  He,  however,  lost  a  splendid  oppor- 
tunity in  his  failure  to  appoint  their  successors  under  the 
new  system  and  thus  give  the  reform  a  right  start.  In 
the  sixty  days  before  the  law  went  into  effect,  the  mayor 
and  his  chief  lieutenants  turned  out  the  old  gang  of 
spoilsmen  and  stuffed  the  departments  with  a  new  one. 
He  partially  atoned  for  this  outrage  by  naming  an  ad- 
mirable commission  and  giving  them  effective  support 
through  the  remainder  of  his  administration. 

58 


THE   CIVIL   SERVICE   SITUATION 

It  was  the  intention  of  the  law  to  create  a  non- 
partisan, independent,  and  continuous  commission,  which 
should  not  change  with  the  incoming  of  a  new  city  ad- 
ministration. This  commission  is  charged  with  the  admin- 
istration of  the  law  and  is  in  no  way  responsible  to  or 
under  the  direction  of  the  mayor.  It  is  its  duty  to  en- 
force the  law,  his  to  obey  it. 

The  election  of  JNIayor  Harrison  involved  a  party 
change  of  administration.  His  campaign  resounded  with 
the  war  whoops  of  the  spoilsmen  and  liberal  promises  on 
his  part  "to  turn  the  rascals  out."  Had  the  new  mayor 
contented  himself  with  the  removal  of  Mayor  Swift's 
spoilsmen  and  the  inefficient  appointees  made  from  the 
eligible  list,  if  any,  and  appointed  their  successors  from 
such  list,  his  acts  would  have  met  the  cordial  approval 
of  reformers.  But  this  is  not  what  happened.  Mayor 
Harrison  assumed  at  the  outset  that  the  civil  service 
commissioners  are  his  subordinates,  and  that  he  is  en- 
titled to  have  a  majority  of  them  in  political  and  per- 
sonal accord  with  himself.  As  well  might  the  President 
contend  that  the  judges  of  the  federal  courts  should  be 
in  political  and  personal  harmony  with  him.  Proceeding 
upon  this  vicious  assumption  the  mayor,  having  made 
one  of  the  old  commissioners  comptroller,  removed  the 
two  remaining  members  upon  absurd  charges  afterwards 
trumped  up  to  comply  with  a  provision  of  the  statute 
requiring  him  to  file  his  reasons  for  such  removals.  A 
majority  of  the  new  commission,  which  as  a  whole 
might  easily  have  been  made  either  better  or  worse,  were 
chosen  from  the  mayor's  personal  and  political  supporters. 

59 


ESSAYS  AND  ADDRESSES 

The  new  mayor,  upon  his  inauguration,  filled  most  of 
the  higher  places  in  the  service  with  avowed  and  ac- 
tive enemies  of  the  civil  service  law.  These  officials,  with 
some  honorable  exceptions,  in  cooperation  with  the  coun- 
cil, are  doing  what  may  be  done  to  place  the  merit  system 
in  a  false  light  before  the  public  and  render  the  act  in- 
operative. 

The  corporation  counsel,  almost  immediately  after  his 
appointment  and  in  order  not  to  "deprive  the  people  of 
the  benefits  of  a  change  of  administration,"  placed  a  con- 
struction upon  the  words,  "heads  of  any  principal  depart- 
ment of  the  city,"  contained  in  Section  11  of  the  civil 
service  act,  removing  from  its  operation,  as  construed  by 
the  first  civil  service  commissioners,  forty-eight  positions 
"among  others." 

The  present  civil  service  commissioners'  "opinion" 
(addressed  to  the  mayor,  May  22,  1897),  placed  a  con- 
struction upon  the  act  giving  to  the  mayor  "the  benefit 
of  the  doubt"  as  to  positions  which  "should  be  taken  out 
of  the  classified  service." 

The  council,  on  June  1,  1897,  by  ordinance  created  a 
division  of  the  city  laboratory  to  be  known  as  the  "milk 
division,"  the  superintendent  to  be  "appointed  by  the 
mayor  on  recommendation  of  the  commissioner  of  health, 
and  with  the  consent  and  approval  of  the  city  council." 
(Council  Proceedings,  p.  296.) 

The  council,  on  June  8,  1897,  created  the  "office"  of 
private  secretary  to  the  assistant  superintendent  of  police, 
to  be  appointed  by  the  mayor,  with  the  advice  and  con- 
sent of  the  council.      (Council  Proceedings,  p.  344-) 

60 


THE   CIVIL   SERVICE   SITUATION 

The  council,  on  June  14,  1897,  to  relieve  "hundreds 
of  families"  from  the  "alternative"  of  "death  by  starva- 
tion or  the  poorhouse,"  and  because  "the  iniquitous,  un- 
American  civil  service  law  stands  as  a  barrier  against 
those  who  are  disposed  to  lend  a  helping  hand  to  suffer- 
ing humanity,  by  relieving  those  in  dire  distress,"  directed 
the  mayor  and  conmiissioner  of  public  works  to  confer 
with  the  civil  service  commissioners  to  arrange  "to  place 
gangs  of  men  to  work  alternately  when  required." 
(Council  Proceedings,  p.  378.) 

The  council,  on  the  same  date,  by  ordinance  estab- 
lished a  "department  of  the  municipal  government  of  the 
city  of  Chicago,"  to  be  known  as  the  "bureau  of 
license  investigation,"  and  to  have  a  superintendent  and 
eleven  assistants,  subordinate  to  and  under  the  direction 
and  control  of  the  city  collector."  By  this  ordinance  it 
is  also  provided  that  the  superintendent  shall  be  the 
"head  of  said  bureau,"  and  that  he  and  all  his  assistants 
"shall  be  appointed  by  the  mayor  by  and  with  the  advice 
and  consent  of  the  city  council."  (Council  Proceedings,  p. 
406.) 

The  committee  on  civil  service  of  the  council,  also  on 
June  14,  1897,  unanimously  reported  forms  for  four 
ordinances,  with  recommendations  that  they  pass.  The 
committee  by  said  ordinances  proposed  to  designate  as 
"heads  of  principal  departments,"  as  said  term  is  used  in 
Section  11  of  the  civil  service  act,  numerous  "public 
officials"  and  "all  employees  of  the  city  of  Chicago  re- 
ceiving $3.00  or  less  per  day,  as  compensation  for  work," 
the  said  "officials"  to  be  selected  by  the  mayor  and  con- 

61 


ESSAYS  AND  ADDRESSES 

firmed  by  the  council;  to  make  the  "head  of  each  and 
every  department,  bureau,  or  division  of  work  in  the  pubHc 
service  of  Chicago,"  and  certain  experts,  private  secre- 
taries, head  assistants  and  others,  subject  to  confirmation 
by  the  council;  to  make  all  "transfers,  appointments, 
discharges,  and  promotions  in  the  fire  and  police  depart- 
ments" subject  to  the  order  of  the  mayor  and  approval 
of  the  council;  and  to  authorize  the  city  clerk  to  appoint 
his  chief  clerk,  with  the  consent  of  the  council.  (Council 
Proceedings,  pjj.  396-398.) 

The  council,  on  June  28,  1897,  passed  as  an  adminis- 
tration measure  an  ordinance  which  provides  that  the  list 
of  "public  officials"  named  in  it  "shall  be  designated  as 
'heads  of  principal  departments,'  as  said  term  is  used  in 
Section  11 "  of  the  civil  service  act,  and  "shall  be  nominated 
by  the  mayor  and  shall  be  confirmed  by  the  city  council." 
(Council  Proceedings,  p.  A7A.) 

Well  might  the  mayor,  in  view  of  these  performances, 
declare  at  the  very  opening  of  his  communication  to  the 
council  on  June  28,  1897  (Proceedings,  p.  472),  that  "up 
to  the  present  time  each  meeting  held  by  j'-our  honor- 
able body  since  the  recent  municipal  election  has  been 
made  noteworthy,  either  by  resolutions  or  by  ordinances, 
having  for  their  purpose  a  desire  to  attack  the  civil 
service  law." 

The  opinions  and  ordinances  above  named,  though  not 
inclusive,  indicate  the  character  of  the  official  action  thus 
far  taken  by  the  present  city  administration  of  Chicago 
in  respect  to  the  civil  service  law.  If  what  has  thus  been 
attempted  by  the  present  municipal  authorities  of  Chicago 

62 


THE  CIVIL   SERVICE   SITUATION 

is  valid,  the  council  may  pass  a  simple  ordinance  requiring 
all  non-elective  officials  and  employees  of  the  city  to  be 
nominated  by  the  mayor  and  confirmed  by  itself.  If  what 
has  been  attempted  is  valid,  such  an  ordinance  would 
destroy  the  civil  service  act. 

The  attorney  general  of  the  State  has  commenced  pro- 
ceedings in  the  Supreme  Court  to  compel  the  classification 
of  the  positions  in  dispute  and  incidentally  to  set  aside 
the  ordinance  of  June  28  as  an  unreasonable  and  ex- 
cessive exercise  of  such  limited  power  as  it  is  believed  the 
council  has  to  interfere  with  the  civil  service  law.  It  would 
not  be  proper  for  me,  as  one  of  the  counsel  in  these  cases, 
to  discuss  them  here.  Suffice  it  to  add,  that  if  the  attorney 
general  succeeds,  the  law  will  be  enforced  despite  the  hos- 
tility to  it  of  many  of  the  principal  officials  of  the  present 
administration. 

The  merit  system  of  appointment  securely  rests  upon 
its  direct  advantage  to  the  public  service.  It  wholly  rejects 
the  spoils  theory  that  public  office  exists  for  private  profit, 
honor,  or  advantage  in  any  form.  It  accepts  without 
qualification  the  doctrine  that  public  office  is  a  public  trust. 
It  claims  that  all  selections  for  the  public  service  should 
be  made  solely  with  a  view  to  the  public  welfare.  It  holds 
that  in  every  public  position  the  opportunity  to  render  a 
public  service  is  paramount,  and  that  whatever  of  per- 
sonal honor  and  profit  attaches  to  it  is  but  incidental. 
With  these  claims  we  might  rest  the  argument  for  the 
merit  system.  We  may,  however,  go  further.  It  secures 
to  all  the  right  to  compete  for  public  employment,  the 
right  of  freedom  of  contract  with  the  largest  employer  of 

63 


ESSAYS  AND  ADDRESSES 

skilled  and  unskilled  labor.  No  one  has  a  right  to  be  or 
remain  employed  by  the  public,  but  all  have  an  equal  right 
to  compete  for  public  employment.  One  of  the  main 
objects  of  all  the  civil  service  laws  is  to  preserve  this 
right. 

The  Supreme  Court  of  Illinois  has  jealously  guarded 
the  fundamental  rights  of  citizenship.  Within  a  few  years 
it  has  pronounced  a  series  of  great  judgments  broadly 
interpreting  the  constitutional  provision  that  "no  person 
shall  be  deprived  of  life,  liberty,  or  property  without  due 
process  of  law."  There  is,  as  a  result,  perhaps  no  other 
commonwealth  in  which  the  fundamental  rights  of  free 
men  are  so  carefully  protected. 

The  fundamental  principle  upon  which  liberty  is 
based,  in  free  and  enlightened  government,  is  equality 
under  the  law  of  the  land.  It  has  accordingly  been  every- 
where held,  that  hberty,  as  that  term  is  used  in  the  consti- 
tution, means  not  only  freedom  of  the  citizen  from 
servitude  and  restraint,  but  is  deemed  to  embrace  the  right 
of  every  man  to  be  free  in  the  use  of  his  powers  and 
faculties,  and  to  adopt  and  pursue  such  avocation  and 
calling  as  he  may  choose,  subject  only  to  the  restraints 
necessary  to  secure  the  common  welfare.  (The  Brace- 
ville  Coal  Co.  vs.  The  People,  147  III,  66,  70.) 

The  privilege  of  contracting  is  both  a  liberty  and 
property  right.  .  .  .  The  right  to  use,  buy,  and  sell 
property  and  contract  in  respect  thereto  is  protected  by 
the  Constitution.  Labor  is  property,  and  the  laborer  has 
the  same  right  to  sell  his  labor,  and  to  contract  with 
reference  thereto,  as  has  any  other  property  owner. 
.  .  .  .  The  right  to  labor  or  employ  labor,  and  make 
contracts  in  respect  thereto  upon  such  terms  as  may  be 
agreed  upon  between  the  parties,  is  included  in  the  consti- 
tutional guaranty.  (Ritchie  vs.  The  People,  155  III., 
98, 104.) 

64 


THE   CIVIL   SERVICE   SITUATION 

These  fundamental  doctrines  have  been  given  full  effect 
in  sustaining  the  right  of  citizens  to  compete  for  private 
employment.  But  all  citizens,  having  the  proper  require- 
ments of  age,  health,  and  moral  character,  have  a  right  to 
compete  for  public  as  well  as  private  employment.  The 
spoils  system  everywhere  denies  and  ignores  this  right. 
It  has  placed  and  seeks  to  perpetuate  an  irresponsible 
aristocracy  between  the  people  and  their  government.  It 
is  an  odious  conspiracy  for  personal  ends,  a  mere  mer- 
cenary survival  of  the  feudal  forces  against  which  modern 
democracy  has  everywhere  won  its  way.  It  has,  by  means 
of  pubhc  plunder  and  the  blackmail  of  vulnerable  private 
interests,  created  a  despotic  government  unknown  to  the 
laws — of  bosses,  by  bosses,  for  bosses — which  largely  con- 
trols both  the  elective  and  appointive  entrances  to  public 
service  and  employment. 

The  merit  system,  on  the  contrary,  is  in  entire  accord 
with  democratic  institutions.  It  seeks  to  restore  their 
government  to  the  people.  It  recognizes  and  secures  to 
all  citizens  their  right  to  compete  for  public  employment. 
Thus  the  National  and  Massachusetts  acts  provide  for 
the  punishment  of  officials  and  others  who  shall  "defeat, 
deceive,  or  obstruct  any  persons  in  respect  of  his  or  her 
right  of  examination."  The  constitution  of  New  York, 
adopted  in  1894,  requires  all  appointments  to  be  made 
upon  "examination  which,  so  far  as  practicable,  shall  be 
competitive."  Our  statute  provides  that  "all  applicants 
for  offices  or  places  in  said  classified  service  .... 
shall  be  subjected  to  examination,  which  shall  be  public, 
competitive,  and  free  to  all  citizens  of  the  United  States, 

65 


ESSAYS  AND  ADDRESSES 

with  specified  limitations  as  to  residence,  age,  health, 
habits,  and  moral  character."  (Sec.  6.)  The  act  also 
contains  other  strict  provisions  to  eliminate  personal  in- 
fluence and  favoritism. 

What  is  competitive  examination?  It  is  an  examina- 
tion in  which  every  citizen  conforming  to  certain 
requirements  as  to  age,  health,  and  moral  character  has 
a  right  to  appear,  and  in  which  he  has  a  perfectly  equal 
chance  with  every  other  candidate  —  whether  rich  or  poor, 
whether  the  son  of  a  hod-carrier  or  a  millionaire,  whether 
Republican  or  Democrat  or  non-partisan,  whether 
Christian,  Jew,  or  Gentile  —  and  which  gives  those  who 
pass  the  tests  of  merit  and  fitness  most  successfully  the 
best  title  to  appointment  —  an  examination,  in  one  word, 
which  puts  all  citizens,  irrespective  of  wealth,  of  social  or 
political  influence,  of  party  affiliation,  or  of  religious  be- 
lief, upon  a  perfectly  equal  footing,  giving  the  best  man 
the  best  chance."     (Carl  Schurz.) 

Nothing  short  of  the  merit  system,  as  thus  interpreted, 
is  really  democratic.  Nothing  less  than  the  open  compe- 
tition which  it  provides  can  secure  to  all  citizens  their  equal 
right  to  compete  for  public  employment.  Democratic 
institutions  assume  that  officers  and  employees  will  be 
selected  from  the  entire  body  of  the  people.  Elective 
officials  are,  at  least  in  theory,  so  selected.  It  was  once 
assumed  that  they  would  in  turn  select  their  subordinates 
from  the  whole  people,  thus  recognizing  the  right  of  all 
to  be  considered  in  the  choice  of  public  servants.  We  now 
know  how  the  spoils  system  has  intervened,  how  it  denies 
the  equal  right  of  all  to  compete  for  entrance  to  the  public 
service,  how  it  subordinates  that  service  to  personal  and 
party  ends.  Thus  the  merit  system  has  become  a  reform 
of  vital  moment,  the  only  available  way  at  once  to  restore 

66 


THE  CIVIL   SERVICE   SITUATION 

the  government  to  the  people  and  secure  a  worthy  public 
service. 

Nothing  sounds  more  plausible  than  the  plea  for  the 
discretion  of  appointing  officers  in  the  choice  of  their 
subordinates.  This  plea  is  the  cant  of  every  spoilsman. 
It  was  long  used  as  a  defence  for  the  entire  spoils  system, 
and  has  now  become  a  kind  of  "last  ditch"  to  save  some 
of  the  best  berths,  and  esjDccially  those  whose  occupants 
have  the  custody  of  public  funds,  from  the  grasp  of  the 
merit  system  of  appointment  and  promotion.  In  private 
business,  where  political  pressure  is  unknown,  such  dis- 
cretion takes  the  place  of  competitive  examination.  In 
public  life,  wherever  the  semi-barbarous  maxim,  "to  the 
victor  belong  the  spoils,"  is  recognized,  the  discretion  of 
the  appointing  officer,  to  be  exercised  only  in  the  public 
interest,  is  a  myth.  He  merely  registers  and  legalizes 
appointments  to  office  which  have  been  made  for  him  by 
the  irresponsible  chief  or  chiefs  of  his  party  machine. 

There  is  no  peculiar  mystery  requiring  an  illusive  kind 
of  merit  and  character  in  officials  who  have  the  supervision 
of  the  work  of  subordinates,  though  in  large  numbers, 
or  even  the  custody  of  public  money.  Banks,  business 
houses,  and  the  offices  of  great  corporations  are  full  of 
such  positions,  most  of  whose  occupants  have  reached  them 
by  a  process  of  slow  promotion  from  the  lowest  grades  of 
the  service.  It  is  the  purpose  of  our  statute,  in  providing 
for  promotions  to  such  positions  "on  the  basis  of  ascer- 
tained merit  and  seniority  in  service  and  examination,"  to 
accomplish  the  same  result  in  the  classified  service.  In 
order  carefully  to  guard   against  the  promotion  to,  or 

67 


ESSAYS  AND  ADDRESSES 

retention  in,  a  place  of  financial  trust  of  one  whose  char- 
acter is  even  suspected  by  his  superior,  Section  12  provides 
that  no  charge  or  investigation  shall  be  required  upon  the 
removal  of  "persons  having  the  custody  of  public  money, 
for  the  safekeeping  of  which  another  person  has  given 
bonds."  This  provision  of  the  act  and  that  governing 
promotions  give  ample  opportunity  to  secure  tried 
and  faithful  men  for  such  positions.  Such  a  system 
as  to  similar  positions  works  with  entire  satisfaction  at 
Washington  and  in  the  great  revenue  and  post  offices 
of  the  government.  Our  statute,  if  enforced  in  its 
letter  and  spirit,  vdll  doubtless  give  equally  satisfactory 
results.  If  not,  only  the  legislature  has  power  materi- 
ally to  extend  the  list  of  exemptions  from  the  classified 
service. 

There  is  not  time  to  speak  of  the  various  movements 
to  establish  the  merit  system  in  widely  separated  States 
and  cities.  Suffice  it  to  say  that  in  Pennsylvania  and 
Maryland,  in  Minnesota  and  Wisconsin,  hopeful  efforts 
toward  this  result  are  now  being  made,  that  New  Orleans, 
Tacoma,  and  Seattle  have  already  secured  it  in  their  char- 
ters, and  that  in  San  Francisco,  Los  Angeles,  Denver, 
St.  Louis,  and  Wheeling  steps  to  the  same  end  have  already 
been  taken.  Thus  the  reform  grows,  its  seed  finding  good 
soil  in  every  part  of  the  Republic.  Nor  did  it  appear  any 
too  soon.  The  vicious  spoils  system  was  everywhere 
sapping  the  vitality  of  free  institutions.  An  adequate 
remedy  was  necessary  for  their  preservation.  It  was 
found  in  the  merit  system  of  appointment,  and  it  only 
remains  to  apply  this  remedy  fully  and  permanently. 

68 


THE   CIVIL   SERVICE   SITUATION 

We  are  still  in  the  midst  of  the  fight  for  the  complete 
reform  of  the  civil  service, — National,  State,  and  munici- 
pal. Many  victories  have  been  won.  There  has  been  and 
will  be  no  retreat.  The  final  victory  may  be  long  in  coming, 
but  it  will  come. 


69 


STREET  RAILWAY  LEGISLATION   IN 
ILLINOIS  * 

nnHE  story  of  the  street  railways  of  Chicago  illustrates 
at  every  point  the  want  of  foresight  that  has 
marked  the  policy,  or  lack  of  policy,  of  American  cities 
touching  the  public  services  now  required  by  urban  popu- 
lations. Recent  Illinois  legislation,  due  to  the  Chicago 
street  railway  situation,  is  of  more  than  local  or  passing 
interest.  The  act  of  May  18,  1903,  known  during  its 
stormy  passage  through  the  two  houses  of  the  General 
Assembly  as  "Senate  bill  No.  40,"  is  believed  to  be  the 
first  general  legislative  act  in  the  United  States  providing 
for  the  municipal  ownership  of  street  railwaj^s.  Its  final 
passage  after  six  years  of  earnest  effort,  despite  the  utmost 
opposition  of  public  service  corporations  and  their  political 
alhes,  is  one  of  the  most  notable  triumphs  of  public  opinion 
within  recent  years. 

The  street  railways  of  Chicago  were  constructed  and 
have  been  maintained  under  statutes  and  ordinances 
enacted  from  time  to  time  since  1858.  All  statutes 
enacted  prior  to  the  State  constitution  of  1870,  which  pro- 
hibited such  acts,  were  special.  Bj^  enactments  of  1859 
and  1861  three  street  railway  corporations,  for  the  several 
natural  divisions  of  the  city,  were  created,  each  to  have 
corporate  life  for  twenty-five  years.  In  1865,  by  act 
passed  at  the  instance  of  the  companies,  and  by  means 

*  Reprinted  from  "  The  Atlantic  Monthly,"  January,  1904, 

70 


STREET   RAILWAY   LEGISLATION 

which  have  never  been  defended,  over  the  veto  of  Governor 
Oglesby,  their  corporate  Hfe  was  extended  to  ninety-nine 
years.  They  claim  that  this  act  also  operates  to  extend 
their  rights  in  the  streets  of  Chicago  for  a  like  period. 
The  city  has  always  protested  against  this  legislative  dis- 
position of  its  streets  as  a  violation  of  the  principle  of 
home  rule.  It  also  contends  that  the  act  violates  the  State 
constitution  of  1848  in  certain  particulars. 

There  are  wide  differences  of  view  as  to  the  scope  of  the 
act  of  1865.  The  city  contends  that,  if  valid,  it  only  affects 
the  streets  occupied  by  the  companies  at  the  date  of  its 
passage.  This  view  is  practically  that  of  the  Chicago  City 
Railway  Company,  which  occupies  the  south  division  of  the 
city,  and  is  owned  by  local  capitalists.  This  company  only 
claims  that  about  fifteen  per  cent  of  its  mileage,  in- 
cluding important  portions  of  its  terminals  in  the  centre 
of  the  city,  is  covered  by  the  act.  The  allied  companies 
which  occupy  the  north  and  west  divisions  of  the  city, 
and  are  largely  owned  by  the  Widener-Elkins  syndicate 
of  New  York  and  Philadelphia,  after  accepting  during 
many  years  grants  from  the  city  for  extensions  and  cross 
lines,  strictly  limited  to  twenty  years,  have  recently  sought 
to  repudiate  all  limitations  in  favor  of  the  city,  claiming 
that  the  General  Assembly  of  1865  really  intended  a  sys- 
tem grant,  and  that  every  concession  since  made  by  the 
city  added  so  much  to  their  ninety-nine-year  possessions. 

The  city,  on  July  30,  1883,  to  set  at  rest  for  the  time 
being  its  controversy  with  the  companies  over  the  Ninety- 
Nine- Year  act,  made  a  general  extension  grant  for  twenty 
years  without  prejudice  to  the  conflicting  claims  of  the 

71 


ESSAYS  AND  ADDRESSES 

parties.  Under  this  and  many  subsequent  grants  similarly 
limited  for  extensions  and  cross  lines,  the  cable  and  electric 
lines  of  the  companies  have  been  constructed  and  operated. 
At  no  time  have  the  companies  operated  any  of  their  lines 
under  the  Ninety-Nine- Year  act  unsupported  by  city 
grants. 

The  State,  by  a  general  act  of  1874,  provided  for  cor- 
porations to  construct,  maintain,  and  operate  "Horse  and 
Dummy  Railroads."  Under  its  provisions  the  cities  of  the 
State  might  make  grants  of  rights  in  their  streets  for  terms 
not  exceeding  twenty  years.  This  act,  never  sufficient  for 
the  protection  of  the  public  and  private  interests  involved, 
gradually  became  more  and  more  inadequate  for  these 
purposes.  With  the  transformation  of  pioneer  horse  lines 
into  costly  cable  and  electric  systems  having  hundreds  of 
miles  of  trackage,  great  power  plants,  thousands  of  em- 
ployees, and  millions  of  dollars  in  annual  receipts,  the  need 
of  new  legislation  became  more  and  more  apparent. 
However,  the  growth  of  the  public  service  corporation 
from  small  beginnings  had  been  so  rapid,  its  corrupting 
influence  was  so  insidious,  and  the  citizens  were  so  occupied 
with  their  private  concerns,  that  as  yet  there  was  no  clearly 
defined  public  policy  to  be  expressed  in  new  legislation. 

The  people  of  Chicago,  while  still  groping  for  a  policy, 
as  long  ago  as  1896  realized  that  the  employment  of  private 
capital  in  the  conduct  of  the  public  business  is  the  direct 
cause  of  municipal  misrule  and  the  real  issue  in  municipal 
politics ;  that  the  question  in  every  American  city  is  whether 
the  public  authority  shall  be  exercised  by  the  people  for 
public  ends,  or  by  allied  pubhc  service  corporations  for 

72 


STREET   RAILWAY   LEGISLATION 

incorporated  greed;  and  that  it  will  soon  be  determined 
whether  the  city  of  the  people  is  to  become  a  private  muni- 
cipality. 

The  city  council,  for  oft-repeated  good  and  valuable 
considerations,  had  long  been  a  corporate  possession  of 
the  street  railways  and  their  allied  corporate  interests. 
With  the  first  attempt  of  the  people  to  recover  possession 
of  the  legislative  authority  of  the  city,  these  interests  took 
alarm.  Under  cover  of  the  exciting  national  campaign  of 
1896  they  in  advance  acquired  title  to  the  incoming  gov- 
ernor and  General  Assembly  of  the  State.  Early  in  the 
legislative  session  of  1897,  the  street  railway  companies 
caused  to  be  introduced  into  both  houses  of  the  General 
Assembly  a  bill  to  extend  for  fifty  years  their  disputed 
rights  in  the  streets  of  Chicago,  in  wanton  disregard  of 
public  interests.  This  bill  promptly  passed  the  senate  by 
a  large  majority.  It  was  bitterly  opposed  by  the  people 
and  press  of  Chicago,  and  was  finally  defeated  in  the  house. 
The  companies  thereupon  caused  to  be  introduced  and 
passed  a  simple  measure  authorizing  the  several  cities  of 
the  State  to  make  grants  to  street  railway  companies  for 
periods  not  exceeding  fifty  years. 

The  act  of  1897  operated  to  extend  the  term  for  which 
franchise  grants  might  be  made  by  municipalities  from 
twenty  to  fifty  years.  It  was  passed  by  means  that  dis- 
graced the  State,  and  aroused  bitter  feehng  from  Chicago 
to  Cairo.  How  keenly  the  people  of  Illinois  resented  this 
debauchery  of  their  State  government  was  shown  a  year 
and  a  half  later,  at  the  next  election  of  members  of  the 
General  Assembly.    Of  sixteen  retiring  senators  who  voted 

73 


ESSAYS  AND  ADDRESSES 

for  the  obnoxious  measure  of  1897  but  two  were  reelected; 
and  of  the  eighty-two  representatives  who  so  voted  but 
fourteen  secured  reelection.  There  was,  perhaps,  never 
such  a  slaughter  of  State  legislators.  The  memory  of  the 
tragedy  of  1898  still  haunts  the  corridors  of  the  State 
capitol  at  Springfield.  Indeed,  since  that  memorable 
election  the  General  Assembly  of  Illinois  has  dealt  with 
much  fear  and  trembling  with  the  subject  of  street  railway 
legislation.  At  its  next  session,  by  unanimous  vote  in  the 
house,  it  repealed  the  act  of  1897,  and  restored  the  former 
statute.  The  governor  who  signed  the  obnoxious  measure 
of  two  years  before  gave  his  official  sanction  to  the  new 
act  restoring  the  situation.  Meantime  the  street  railway 
companies,  which  for  two  years  had  vainly  sought  fifty- 
year  extensions  from  the  city  council  of  Chicago,  stood 
idly  by,  unable  to  avert  the  bitter  humiliation  of  utter 
defeat. 

Thus  closes  the  first  chapter  of  the  story  of  recent 
street  railway  legislation  in  Illinois.  Pending  the  strug- 
gle above  outlined,  an  affirmative  public  policy  for  the 
better  control  of  street  railways  was  taking  form  in 
Chicago.  Leaders  in  the  movement  for  the  protection  of 
public  interests  had  framed  a  comprehensive  bill  looking 
to  public  control  and  possible  public  ownership,  which 
they  offered  at  the  legislative  session  of  1899.  How- 
ever, public  opinion  was  not  yet  ripe  for  constructive 
legislation  in  the  public  interest;  and  the  General  As- 
sembly, almost  entirely  composed  of  new  members,  was 
afraid  to  experiment  with  so  dangerous  a  subject. 

The  movement  to  make  the  city  council  representa- 

74 


STREET   RAILWAY   LEGISLATION 

tive  of  public  interests  had  so  far  succeeded,  that  from 
the  year  1900  its  able  committee  on  local  transportation 
properly  assumed  the  leadership  on  behalf  of  Chicago  in 
the  effort  to  secure  adequate  street  railway  legislation. 
The  committee,  having  made  an  extensive  study  of  the 
conditions,  submitted  to  the  General  Assembly  of  1901  a 
comprehensive  bill  for  a  general  street  railway  law.  It 
was  assumed  by  the  framers  of  this  measure  that  local 
transportation  should  be  treated  as  a  monopoly;  that, 
while  conducted  by  the  public  service  corporation,  it 
should  be  subjected  to  strict  public  control;  and  that 
the  right  of  municipal  ownership  should  be  reserved  and 
safeguarded.  The  bill,  drawn  on  these  lines,  although 
ably  supported  by  the  council  conmiittee  at  Springfield, 
was  strangled  in  the  house  committee  to  which  it  was  re- 
ferred. After  repeated  public  hearings  this  committee 
simply  failed  to  report.  The  bill  was  not  relished  by 
certain  of  the  street  railway  interests;  and  it  is  believed 
that  the  inaction  in  the  house  was  not  solely  due  to  legis- 
lative timidity. 

Two  years  now  quickly  passed,  during  which  the 
struggle  on  behalf  of  public  interests  steadily  gained 
ground  in  Chicago.  The  general  extension  ordinance 
of  1883  was  to  expire  on  July  30,  1903.  In  the  Spring 
of  1902,  under  a  recent  act  permitting  the  submission  of 
public  questions  to  popular  vote,  the  electors  of  the  city, 
by  a  majority  of  about  five  to  one,  expressed  their  opin- 
ion in  favor  of  the  municipal  ownership  of  the  street 
railways.  However,  as  many  grants  of  particular  streets 
made  at  different  times  to  the  companies  will  not  expire 

75 


ESSAYS  AND  ADDRESSES 

for  several  years,  and  the  city  is  not  in  financial  condi- 
tion for  so  great  a  pui'chase,  early  municipal  ownership 
is  impracticable  even  if  desirable.  The  popular  vote  of 
1902  favoring  it  must  be  regarded  as  an  expression  of 
hostility  to  the  street  railway  companies  rather  than  as 
a  demand  for  immediate  municipal  ownership. 

The  failure  of  the  comprehensive  street  railway  bills 
of  1899  and  1901,  and  the  conservative  attitude  of  leading 
country  members  to  legislation  uniformly  branded  "so- 
cialistic" by  the  owners  of  the  securities  of  public  service 
corporations,  led  the  committee  on  local  transportation 
of  the  city  council  of  Chicago  and  its  supporters  to  pro- 
pose a  more  simple  measure  at  the  session  of  the  General 
Assembly  of  1903.  The  end  sought  was  to  reverse  exist- 
ing conditions,  and  place  the  city,  instead  of  the  com- 
panies, in  control  of  the  situation.  To  accomplish  this, 
it  was  deemed  necessary  to  obtain  for  the  city  power  to 
acquire,  own,  and  operate  its  street  railways.  Hence 
there  arose,  prior  to  the  opening  of  the  session,  a  wide 
demand  for  enabling  legislation  as  a  condition  precedent 
to  the  further  extension  of  the  expiring  franchises  of  the 
street  railway  companies.  Bills  to  empower  the  cities 
of  Illinois  to  acquire  street  railways,  and  to  reserve  the 
right  of  municipal  acquisition  in  franchise  grants,  were 
promptly  offered  by  the  council  committee  and  others. 

It  was  known  prior  to  the  organization  of  the  house 
that  the  effort  to  pass  such  a  measure  would  be  the  chief 
feature  of  the  session.  The  governor,  representing  the 
spoils  faction  of  his  party,  of  course  desired  to  have  his 
supporters  control  the  house.     The  party  boss  of  Chi- 

76 


STREET   RAILWAY   LEGISLATION 

cago,  Mr.  William  C.  Lorimer,  for  purposes  of  "poli- 
tics" wished  to  possess  the  house.  The  editor  of  the 
Inter-Ocean,  Mr.  George  W.  Hinman, —  brought  from 
New  York  by  Mr.  Charles  T.  Yerkes  when  he  purchased 
that  stalwart  party  organ  and  made  it  the  avowed  cham- 
pion of  the  street  railway  corporations, —  had,  in  his  ca- 
pacity of  organ  grinder,  acquired  some  party  influence 
outside  Chicago,  which  gave  him  a  place  in  the  combine 
to  control  the  house.  These  allies,  by  the  utmost  effort, 
including  the  use  of  State  patronage,  controlled  the  cau- 
cus by  a  bare  majority  and  secured  the  organization. 
They  chose  for  speaker  a  weak  and  unknown  man, 
pledging  him  to  obey  orders.  It  was  subsequently  under- 
stood in  the  house  that  as  a  condition  of  his  election  the 
speaker  was  required  to  promise  to  carry  out  Hinman's 
orders  on  all  street  railway  measures,  and  to  use  the  gavel 
when  necessary  to  defeat  objectionable  legislation.  Mr. 
"Gus"  Nohe, — Lorimer's  member  from  his  own  legis- 
lative district, — when  asked  whether  there  was  to  be  any 
traction  legislation,  replied:  "I  don't  know.  I  do  what- 
ever the  old  man  tells  me  to;  and  he  tells  me  to  do  about 
traction  as  Hinman  says."  Hinman  himself  announced 
that  there  would  be  no  traction  legislation  at  that  session. 
The  companies,  thus  safegarded  by  the  organization  of 
the  house,  were  not  openly  represented  at  Springfield. 

The  city  council  of  Chicago  sent  to  the  General  Assem- 
bly, with  its  endorsement,  a  bill  for  an  enabling  act  pre- 
pared by  its  committee  on  local  transportation.  A  special 
committee,  composed  in  part  of  members  of  the  council, 
presented  a  somewhat  more  radical  measure.     Several 

77 


ESSAYS  AND  ADDRESSES 

members  offered  individual  bills  largely  copied  from 
these  two.  A  bill,  mainly  drafted  by  the  secretary  of  the 
Municipal  Voters'  League  of  Chicago,  and  offered  in  the 
senate  by  Senator  JNIueller,  became  known  as  Senate  bill 
No.  40. 

While  the  situation  at  Springfield  was  thus  confused, 
the  mayoralty  campaign  came  on  in  Chicago.  The  plat- 
form of  the  Municipal  Voters'  League,  on  which  more 
than  two-thirds  of  the  members  of  the  council  had  been 
elected,  was  heartily  endorsed  by  the  conventions  of  both 
parties.  The  mayor  had  actively  participated  in  the  de- 
velopment of  the  street  railway  programme  embodied  in 
the  League  platform.  His  Republican  opponent,  who 
was  without  a  traction  record,  actively  exerted  his  in- 
fluence to  advance  the  "Mueller  bill"  at  Springfield. 
In  part  because  of  his  efforts,  and  in  response  to  the 
unanimous  demand  of  the  public  press  of  Chicago,  Senate 
bill  No.  40  passed  the  senate  just  after  the  municipal 
election  in  Chicago. 

The  house  organization  now  set  itself  to  suppress  the 
senate  measure  and  to  defeat  all  street  railway  legisla- 
tion, meanwhile  pretending  to  meet  the  popular  demand. 
Messrs.  Lorimer  and  Hinman  went  to  Springfield  and 
openly  assumed  personal  direction  of  the  house.  The 
municipal  committee,  composed  almost  entirely  of  ma- 
chine puppets,  promptly  suppressed  the  senate  bill,  re- 
porting a  substitute  prepared  by  its  chairman,  Mr, 
Cicero  J.  Lindley,  under  the  immediate  supervision  of 
Messrs.  Lorimer  and  Hinman.  These  open  supporters  of 
the  Yerkes  legislation  of  1897  now  posed  as  saviours  of  the 

78 


STREET   RAILWAY   LEGISLATION 

city  from  the  alleged  evil  designs  of  the  reform  leaders. 
They  insisted  that  there  should  be  no  grants,  even  if 
made  from  time  to  time  in  succession,  for  more  than 
twenty  years  in  the  aggregate.  They  claimed  that  their 
"Lindley  bill"  was  the  only  genuine  municipal-ownership 
measure.  The  bill  itself  was  a  blundering  abstract  of 
parts  of  the  senate  bill.  The  provision  of  that  measure 
authorizing  cities  to  borrow  money  on  special  certificates 
with  which  to  acquire  street  railway  property  was  care- 
fully emasculated.  Other  changes  and  omissions  pointed 
unmistakably  to  a  desire  to  protect  the  existing  com- 
panies. 

It  may  be  asked.  Why  did  Lorimer,  absolute  dictator 
of  the  house  organization,  offer  a  substitute  for  the  sen- 
ate bill  in  the  house?  Why  did  he  not  suppress  the  ob- 
noxious measure  and  have  done  with  the  matter?  The 
answer  is  that  public  opinion  was  so  aroused  in  favor  of 
enabling  legislation,  the  suspicion  of  corporate  interfer- 
ence with  the  public  programme  was  so  general,  that 
even  Lorimer  did  not  dare  openly  to  defy  it.  The  plan 
was  for  the  house  to  pass  pretended  enabling  legislation, 
and  to  have  it  fail  between  the  two  houses. 

The  popular  demand  for  the  JNIueller  bill  became  so 
insistent  that  on  the  night  before  the  substitute  was  set 
for  second  reading,  Mr.  Lorimer  became  alarmed.  The 
Democrats  and  minority  Republicans  that  night  held  sep- 
arate caucuses  to  plan  for  the  substitution  of  the  senate 
measure.  How  many  votes  could  be  mustered  against 
the  organization,  believed  absolutely  to  control  the  fate 
of  all  pending  measures  in  the  then  closing  hours  of  the 

79 


ESSAYS  AND  ADDRESSES 

session,  was  not  clear;  but  it  was  evident  that  the  revolt 
was  formidable. 

Late  that  night  a  memorable  conference  was  held  at 
the  call  of  William  C.  Lorimer.  The  place  was  his  private 
chamber  at  the  Leland  House,  in  Springfield.  The  time 
was  from  about  11:30  p.  m.  to  3:30  a.  m.  The  subject 
discussed  was  the  pending  street  railway  legislation. 
There,  in  his  lair,  the  boss  and  his  subordinates  received 
the  representatives  of  public  interests.  Mr.  Lorimer  was 
supported  by  Mr.  Hinman,  and  Messrs.  Lindley,  David  E. 
Shanahan,  "Gus"  Nohe,  and  "Ed"  Morris,  of  the  house. 
Mr.  Frank  O.  Lowden  was  present  in  the  dual  capacity  of 
friend  of  the  organization  and  of  the  city.  Messrs.  Ben- 
nett, Mavor,  and  Eidman,  of  the  council  committee,  and 
Mr.  Graeme  Stewart  (late  Republican  candidate  for 
mayor  of  Chicago),  Mr.  E.  L.  Reeves,  and  the  writer, 
of  the  Chicago  delegation,  were  present  on  Mr.  Lorimer's 
invitation. 

We  were  promptly  asked,  "What  do  you  want?"  Our 
reply  was,  "We  care  nothing  for  names;  but,  in  substance, 
we  want  the  senate  bill.  Nothing  less  will  serve."  Mr. 
Lorimer  emphatically  told  us  that  the  senate  bill  was  dead 
and  buried,  and  that  the  only  hope  of  legislation  at  that 
session  lay  in  the  enactment  of  the  Lindley  substitute. 
We  were  in*ged  to  accept  that  measure,  and  invited  then 
and  there  to  submit  amendments.  It  was  assumed 
throughout  the  conference  that  we  were  "up  against  the 
real  thing";  that  whatever  amendments  Mr.  Lorimer 
might  accept  that  night  would  go  through  the  house  the 
next  day.     The  attitude  of  the  members  of  that  body  on 

80 


STREET   RAILWAY   LEGISLATION 

the  principal  question  of  the  session  was  assumed  to  be 
wholly  immaterial. 

It  makes  one,  who  regards  the  people  as  the  source  of 
political  authority  and  the  General  Assembly  as  a  means 
for  the  expression  of  their  will,  feel  somewhat  queer  to 
participate  in  a  midnight  gathering  called  by  a  voluntary 
political  boss  to  dispense  legislation  of  vital  public  concern. 
However,  under  present  conditions,  only  thus  may  one  be 
sure  to  get  next  to  the  "powers  that  prey."  Thus  only 
may  one  reach  the  source  of  legislation  affecting  privileged 
interests  and  study  it  in  process.  In  this  instance  we  knew 
full  well  that  our  presence  that  night  behind  the  scenes 
was  solely  due  to  ominous  signs  of  revolt  in  the  house. 
The  boss  sought  to  avert  the  storm. 

The  night  wore  on  in  discussion  —  often  heated  dis- 
cussion—  of  the  defects  of  the  substitute  bill.  That 
measure,  as  it  then  stood,  was  a  bungling  imitation  of  the 
senate  bill,  so  emasculated  as  to  render  it  practically 
valueless.  It  bore  unmistakable  marks  of  tender  regard 
for  the  traction  interests.  It  appeared  on  its  face  to  pro- 
vide for  municipal  ownership,  but  withheld  the  means  for 
its  accomplishment.  By  the  omission  of  the  provision  of 
the  senate  bill,  broadly  authorizing  the  municipality  to 
grant  streets  already  occupied  by  street  railways  to  any 
corporation,  without  new  frontage  consents,  it  was  sought 
to  make  it  necessary  for  the  city  to  deal  with  the  present 
companies  and  to  confirm  them  in  their  possession  of  the 
streets. 

These  chief  defects  of  the  substitute  bill  were  stoutly 
defended,  the  first  as  an  alleged  protection  to  the  pubhc 

81 


ESSAYS  AND   ADDRESSES 

from  the  possibility  of  grants  for  more  than  twenty  years ; 
the  second  out  of  a  professed  regard  for  abutting  property 
owners.  Amendments  to  cure  several  minor  defects,  and 
one  covering  frontage  consents  so  worded  as  not  to  fall 
within  the  title  of  the  bill,  were  finally  offered  us.  The 
boss  thereupon  delivered  his  ultimatum,  in  substance  as 
follows:  "You  must  accept  the  Lindley  bill  with  these 
amendments,  pull  down  all  opposition  on  the  floor  of  the 
house  and  from  the  Chicago  press,  and  actively  support 
the  bill.    It  is  the  Lindley  bill  or  nothing." 

A  few  hours  later,  as  the  house  assembled  to  consider 
the  Lindley  substitute  on  second  reading,  the  Chicago 
delegation,  about  twenty  in  number,  composed  of  the 
mayor,  citizens  appointed  by  him,  and  the  council  com- 
mittee,—  rejected  by  practicall}'^  unanimous  vote  the  Lori- 
mer  ultimatum.  This  action,  taken  with  full  knowledge 
that  it  might  mean  present  defeat  instead  of  a  weak  com- 
promise with  the  machine,  was  taken  the  more  readily 
because  Lorimer  by  giving  out  the  proposed  amendments 
had  already  committed  himself  to  them,  and  because  the 
representatives  of  the  city  believed  that  it  was  his  intention 
to  pass  the  amended  substitute  through  the  house  and  kill 
it  in  the  closing  hours  of  the  session. 

The  fight  on  the  floor  of  the  house  was  now  on.  The 
speaker,  who,  the  day  before,  on  the  written  demand  of 
a  majority  of  the  house,  declined  to  say  whether  he  would 
recognize  the  constitutional  demand  of  five  members  for  a 
yea  and  nay  vote  on  all  proposed  amendments,  arbitrarily 
postponed  the  second  reading  of  the  bill  to  two  o'clock 
that  day,  and  then  until  nine  o'clock  the  next  morning. 

82 


STREET   RAILWAY   LEGISLATION 

Meanwhile  the  recalcitrant  members  were  subjected  to 
one  of  the  most  severe  of  machine  tests.  Some  seventy-five 
bills  making  appropriations  for  the  State  government  and 
the  public  institutions  throughout  the  State,  and  many 
other  bills  of  local  or  special  interest  to  the  members, 
stood  on  the  calendar  on  third  reading.  Those  favoring 
the  senate  traction  bill,  led  by  Mr.  Oliver  W.  Stewart, 
the  able  Prohibition  member,  had  given  notice  that  none  of 
these  measures  should  pass  until  the  traction  question  was 
acted  on  by  the  house. 

The  organization  leaders  now  presented  two  carefully 
chosen  appropriation  bills  for  passage.  The  first  was  the 
appropriation  bill  for  the  maintenance  of  the  State 
Normal  School  at  Macomb,  the  home  of  Mr.  Sherman, 
leader  of  the  Republican  opposition.  It  was  permitted 
to  fail,  the  friends  of  Senate  bill  No.  40,  including  Sher- 
man, refusing  to  vote.  A  second  appropriation  bill  shared 
the  fate  of  the  first.  Thereupon  the  house  transacted  some 
unimportant  business  and  adjourned  for  the  day.  That 
night  representatives  of  the  city  declined  an  invitation  by 
Mr.  Lorimer  to  another  conference. 

All  now  anxiously  awaited  the  morrow.  Would  the 
speaker  obey  his  oath  of  office,  permitting  a  roll  call?  Was 
the  will  of  William  Lorimer  to  be  more  potent  than  the 
constitution  of  Illinois?  Was  the  speaker's  gavel  to  be 
used  to  make  a  minority  equivalent  to  a  majority?  The 
action  of  the  speaker  would  plainly  demonstrate  to  an 
entire  people  whether  the  public  service  corporation  re- 
gards its  wants  superior  to  all  law,  whether  corporate 
influence  has  become  the  supreme  law  of  a  great  State. 

83 


ESSAYS  AND  ADDRESSES 

The  opponents  of  the  Lindley  bill  believed  that  the  speaker 
would  finally  observe  his  oath.  Even  they  had  not  fath- 
omed corporate  and  political  insolence. 

The  next  morning,  when  the  house  met  with  packed 
galleries,  the  organization  made  a  final  effort  to  break 
the  ranks  of  the  majority.  The  "Child  Labor  bill," 
the  most  popular  measure  on  the  calendar,  was  called 
on  final  passage.  The  vote  disclosed  the  exact  strength 
of  the  opposing  forces.  Fifty  members  voted  aye. 
Ninety-six  sat  mute.  The  majority  against  the  Lindley 
bill  was  almost  two  to  one.  Had  William  Lorimer 
been  present,  he  might  have  changed  the  programme; 
but,  having  given  his  speaker  orders  for  the  day,  he 
awaited  results  at  his  hotel.  No  one  having  authority 
was  there. 

The  crisis  now  came.  The  Lindley  bill  was  called  on 
second  reading.  The  speaker,  deathly  pale,  stood  at  his 
desk,  gavel  in  hand.  Behind  him  were  several  ladies. 
Massed  about  his  desk  were  twenty  or  more  strong  men 
prepared  to  defend  him.  Mr.  Lindley  offered  his  first 
amendment.  The  opposition  leader  moved  to  lay  it  on  the 
table.  Ninety-six  members  rose  in  their  seats  and  shouted, 
"Roll  call!  Roll  call!"  The  speaker,  refusing  to  hear 
them,  declared  the  amendment  adopted  by  viva  voce  vote. 
"You  lie!"  shouted  Representative  Allen  of  the  minority. 
Then  amid  the  utmost  confusion  and  excitement,  with  the 
majority  members  standing  on  their  desks  shouting,  "Roll 
call!  Roll  call!"  Mr.  Lindley  hastily  offered  his  six  other 
amendments.  The  speaker,  without  the  formality  of 
reading  or  a  vote,  declared  them  all  adopted.     Without 

84 


STREET   RAILWAY   LEGISLATION 

motion,  he  also  declared  the  bill  passed  to  its  third  reading, 
beyond  the  reach  of  further  amendments. 

It  is  impossible  to  describe  the  scene  or  to  convey  an 
adequate  idea  of  its  intensely  dramatic  interest.  The  pale 
and  trembling  speaker,  protected  from  flying  inkstands  by 
the  women  placed  for  that  purpose  at  his  back,  hastily 
executed  his  orders.  But  he  was  not  thus  to  escape  the 
utmost  personal  humiliation.  While  in  the  act  of  de- 
claring the  bill  passed  to  a  third  reading.  Representative 
Burke,  of  Chicago,  unsupported,  made  a  rush  for  him, 
only  to  be  roughly  thrown  to  the  floor.  This  was  the 
extent  of  the  so-called  "riot"  in  the  house.  There  was 
a  rush  of  members  to  the  support  of  Burke;  but  the 
cowardice  of  the  speaker  averted  a  general  fight.  The 
rush  of  one  outraged  member  was  quite  enough  for  him. 
Without  waiting  for  more,  he  precipitately  fled  to  his 
room,  declaring  that  the  house  had  taken  a  recess  until 
afternoon. 

All  this  took  place  in  much  less  time  than  it  has  taken 
to  describe  it.  The  turmoil  and  excitement  at  this  point 
were  indescribable.  The  speaker's  hasty  flight  led  to  a 
quick  transformation.  Representative  Murray,  of  Spring- 
field, standing  on  his  seat  near  the  speaker's  desk,  solemnly 
called  the  house  to  order  and  said:  "It  appears  that  the 
house  is  without  a  presiding  officer ;  I  move  that  Mr.  Allen, 
of  Vermilion,  be  chosen  speaker  pro  tern."  The  motion 
carried,  Mr.  Allen  took  the  deserted  chair,  and  the  con- 
fusion quickly  subsided.  Within  perhaps  a  minute 
after  the  speaker  fled,  the  reorganization  was  perfected, 
and  a  roll  call  of  the  house  was  in  progress. 

85 


ESSAYS  AND  ADDRESSES 

The  manner  in  which  the  ninety-six  members,  whose 
high  duty  it  was  to  restore  constitutional  government  in 
Illinois,  performed  their  unexpected  task  left  nothing  to 
be  desired.  Their  action  on  that  memorable  day  and  in 
the  remaining  days  of  the  session  will  forever  remain  con- 
spicuous among  the  landmarks  on  the  difficult  road  to 
really  representative  government.  There  are  men  in  our 
public  life  who  are  not  the  creatures  of  the  corporations, 
men  who  care  for  something  higher  than  spoils. 

The  house  now  proceeded  to  recall  the  Lindley  bill 
from  its  third  reading.  When  each  amendment  had  been 
reconsidered  and  laid  on  the  table,  the  senate  bill  was  sub- 
stituted, and  the  Lindley  bill  became  in  fact,  if  not  in  name, 
Senate  bill  No.  40.  Meanwhile  the  leaders  of  the  ma- 
jority, in  conference  in  an  adjoining  committee  room, 
prepared  the  following  preamble  and  resolution ; 

Whereas,  The  speaker  of  this  house  has  by  revolu- 
tionary and  unconstitutional  methods  denied  a  hearing  in 
this  house  on  a  roll  call  constitutionally  demanded  upon 
measures  of  grave  import,  prepared  by  those  not  members 
of  this  house,  and  has  attempted  by  the  same  methods  to 
force  the  same  beyond  the  point  where  they  can  be 
amended  or  calmly  considered  upon  their  merits. 

Therefore,  he  it  resolved.  That,  until  the  house  records 
shall  show  a  reconsideration  of  the  action  of  this  house 
on  House  bill  No.  864  [Lindley  bill]  and  all  amendments 
thereto,  and  shall  show  the  adoption  of  this  resolution,  and 
the  house  shall  be  assured  of  the  continuous  observance 
during  the  remainder  of  this  session  of  the  constitutional 
right  of  a  roll  call  on  all  questions  and  the  due  considera- 
tion of  the  business  of  this  house,  no  further  votes  be  cast 
upon  any  pending  bill  by  the  members  of  this  house  with- 
out a  permanent  reorganization  of  this  house. 

86 


STREET   RAILWAY   LEGISLATION 

The  foregoing  preamble  and  resolution  were  thereupon 
signed  by  the  ninety-six  opposition  members  and  spread 
on  the  journal  of  the  house.  The  speaker  pro  tern,  was 
also  instructed  to  read  it  to  the  speaker  in  the  presence  of 
the  house  on  his  return  to  the  chair.  This  was  done  by 
Mr.  Allen  with  great  solemnity  that  afternoon.  Where- 
upon the  house  took  a  recess,  during  which  the  speaker 
conferred  with  Mr.  Lorimer,  Mr.  Hinman,  the  governor, 
Mr.  Lindley,  and  a  few  others.  Upon  his  reappearance 
he  presented  the  following  written  statement  to  the  house : 

I  have  been  approached  at  different  times  by  parties 
who  intimated  to  me  that  I  could  make  money  by  allowing 
a  roll  call  on  what  is  known  as  the  Mueller  bill  or  per- 
mitting its  passage.  I  do  not  know  whether  the  parties 
making  the  statements  were  authorized  to  make  them  or 
not,  but  the  statements  having  been  made  to  me,  and  some 
of  them  recently,  fully  convinced  me  that  there  was  some- 
thing wrong  with  this  effort  on  the  part  of  outside  parties 
to  push  this  bill.  For  this  reason,  I  denied  the  roll  call, 
and  have  stood  firm  on  this  proposition  up  to  the  very 
limit.  A  majority  of  the  house  having  signified  their  de- 
sire to  have  a  roll  call  on  this  proposition,  I  wash  my  hands 
of  the  entire  matter,  and  will  permit  a  roll  call  to  be  had. 

Thereupon  Mr.  Rinaker,  the  able  leader  of  the  ma- 
jority, promptly  moved  the  appointment  by  the  speaker 
himself  of  a  committee  of  five  members  to  investigate  his 
charges.  Upon  Mr,  Rinaker's  suggestion  it  was  de- 
termined that  no  action  should  be  taken  on  traction  or  any 
other  important  legislation  pending  the  investigation  of 
the  charges  made  by  the  speaker  reflecting  on  the  house, 
and  that  the  time  of  adjournment,  already  agreed  upon, 
should  be  postponed  as  long  as  might  be  necessary  for  a 

87 


ESSAYS  AND  ADDRESSES 

thorough  investigation  of  the  charges,  and  for  the  consid- 
eration thereafter  of  the  pending  street  railway  measures. 
The  next  morning  the  press  contained  a  statement  from 
Governor  Yates,  in  which  he  said : 

As  to  Speaker  Miller's  action  in  opposing  a  roll  call 
on  the  Mueller  bill,  ...  I  am  glad  to  have  the  oppor- 
tunity to  say  that  I  believe  him  to  be  a  brave  and  honest 
man,  pursuing  the  only  course  such  a  man  can  pursue 
under  the  circumstances.  ...  I  repeat,  that  I  be- 
lieve that  in  opposing  what  he  believed  to  be  corruption, 
his  action  is  honest  and  brave,  and  entitles  him  to  the 
thanks  of  every  good  citizen  of  Illinois. 

The  following  morning  Representative  Schlagenhauf 
of  the  majority  called  the  attention  of  the  house  to  a  re- 
cent editorial  published  by  Mr.  Hinman  in  the  Chicago 
Inter-Ocean,  which  was  in  part  as  follows:  "And  the 
boodle  is  ready.  And  it  is  in  use.  And  some  members 
already  have  been  bought.  And  others  are  negotiating  for 
it.  .  .  .  Can  money  buy  the  Forty-third  General 
Assembly  of  the  State  of  Illinois?"  Thereupon  the  house 
voted  to  call  Mr.  Hinman  before  its  bar  to  give  such  in- 
formation as  he  might  have  in  support  of  his  charges. 
Afterwards  the  house  referred  this  matter  to  the  investi- 
gating committee.  The  speaker  in  appointing  the 
committee  passed  over  Mr.  Rinaker,  placing  on  it  mem- 
bers a  majority  of  whom  it  was  feared  could  be  depended 
upon  to  make  a  whitewashing  report.  Thereupon  Repre- 
sentative Darrow  of  Chicago,  after  a  hasty  consultation, 
moved  to  amend  by  adding  six  names  of  leading  members, 
including  Mr.  Rinaker.  This  motion  was  carried  on  roll 
caU. 

88 


STREET   RAILWAY   LEGISLATION 

This  committee  on  April  30  made  its  report,  finding  in 
part  as  foUows: 

1.  That  the  evidence  produced  before  us  does  not  es- 
tablish any  real  attempt  to  corruptly  influence  the  action  of 
the  speaker  of  this  house. 

2.  That  there  was  no  reasonable  or  substantial 
ground  for  the  editorial  entitled  "Boodle,"  published  in  the 
Chicago  Inter-Ocean  on  April  21,  1903,  and  recited  in  the 
resolution  introduced  by  Representative  Schlagenhauf ; 
and  that  the  charges  therein  contained,  and  as  specified 
further  in  the  testimony  of  Mr.  Hinman,  were  wholly 
without  truth  or  foundation  as  to  any  member  or  officer  of 
this  house,  so  far  as  we  have  been  able  to  discover.  Your 
conmiittee  feels  it  due  to  it  to  say,  in  view  of  the  publica- 
tion by  Mr.  Hinman  of  his  statement  read  before  it,  that 
it  regarded  the  "rumors"  so  frequently  referred  to  by  him, 
and  the  jocular  remarks  attributed  to  members  and  others, 
as  utterly  unworthy  of  notice,  and  the  charges  reflecting 
upon  citizens  of  Chicago,  employed  or  selected  to  repre- 
sent it,  who,  in  the  opinion  of  your  committee,  deservedly 
stand  high  in  the  estimation  of  its  best  citizens,  as  wholly 
outside  the  purposes  of  this  investigation.  It  also,  in  the 
light  of  the  evidence  before  it,  upon  the  specific  charges 
made  by  him,  placed  no  credence  upon  any  of  his  charges 
of  improper  conduct  or  motives  upon  their  part  in  connec- 
tion with  the  subject  of  this  investigation. 

The  report  of  the  committee  was  adopted  by  a  unani- 
mous vote  of  the  house  on  roll  call.  Messrs.  Lorimer  and 
Hinman,  at  the  close  of  Mr.  Hinman's  testimony  before 
the  committee,  had  left  Springfield,  not  to  return  during 
the  session.  Upon  the  adoption  of  the  report  of  the  com- 
mittee, the  house  by  unanimous  vote  directed  its  municipal 
committee  to  report  Senate  Bill  No.  40.  Mr.  Lindley  at 
once  complied,  and  the  bill  was  promptly  passed,  with 
certain  amendments  proposed  and  accepted  by  the  repre- 

89 


ESSAYS  AND  ADDRESSES 

sentatives  of  the  city,  by  both  houses.  It  went  to  the  gov- 
ernor the  day  before  final  adjournment.  He  promptly 
called  on  the  attorney  general  for  an  opinion  as  to  its  con- 
stitutionality, meanwhile  requesting  both  houses  of  the 
General  Assembly  not  to  adjourn  until  he  had  had  time 
fully  to  consider  its  terms.  The  attorney  general  on  the 
last  night  of  the  session  gave  his  opinion  to  the  effect  that 
the  constitutional  objections  to  the  measure  were  not  well 
founded.  The  friends  of  the  bill  in  both  houses,  believing 
that  to  comply  with  the  governor's  request  would  lead  to 
a  veto,  and  that  if  the  whole  responsibility  was  thrown  on 
him  he  would  approve  it,  adjourned  sine  die. 

The  governor  took  the  full  ten  days  allowed  by  the  con- 
stitution to  determine  whether  to  veto  or  sign  the  bill. 
After  two  public  hearings,  and  after  receiving  much  ad- 
vice, both  public  and  private,  he  finally  on  the  last  day 
approved  it  with  extreme  reluctance.  How  difficult  it  was 
for  him.  to  do  so  appears  from  the  memorandum  explaining 
his  action,  which  he  filed  with  the  Secretary  of  State.  In 
that  remarkable  document,  he  said : 

I  would  veto  this  bill,  were  it  not  that  I  have  great 
confidence  in  the  city  council  of  1903,  and  great  confidence 
in  the  people.     .     .     . 

It  has  been  urged  against  this  bill  by  the  one  man  in 
Illinois  who  was  so  courageous  as  to  argue  for  its  veto 
after  it  was  passed  .  .  .  that  this  bill  was  passed 
under  the  whip  and  spur  of  a  few  newspapers  in  the  city 
of  Chicago.  This  is  true.  Worse  than  that,  it  was  passed 
by  default  in  the  senate  and  by  riot  in  the  house.  Intimi- 
dation of  every  possible  kind  has  been  resorted  to,  and 
within  the  ten  days  during  which  the  governor  has  the 
right,  under  the  wise  and  wholesome  and  hitherto  unques- 
tioned veto  power  of  the  constitution,   to  consider  and 

90 


STREET   RAILWAY   LEGISLATION 

examine  a  bill,  these  same  newspapers  have  endeavored  to 
complete  their  usurpation  of  governmental  functions  — 
their  "government  by  newspapers"  —  by  ridiculing  and 
abusing  the  executive. 

I  approve  the  bill  in  spite  of  this  clamor,  because  the 
real  question  is.  Shall  the  city  councils  of  cities,  and 
the  people  thereof,  be  permitted  to  do  a  right  thing,  and 
not,  Has  the  right  thing  been  brought  about  in  the  wrong 
way? 

I  believe  that  this  bill  should  be  vetoed,  were  the  Gen- 
eral Assembl}^  in  session,  and  that  then  either  this  bill 
should  be  amended,  or  a  new  bill  passed  without  the  faults 
of  this  bill. 

Thus  after  six  years  of  strenuous  conflict  between  pub- 
lic and  private  interests.  Senate  bill  No.  40  became  a  law 
of  the  State  of  Illinois.  This  struggle,  if  it  be  as  signifi- 
cant as  it  seems  to  the  writer,  means  that  the  employment 
of  private  capital  in  the  conduct  of  the  public  business  has 
led  us  to  the  brink  of  government  by  corporations.  If  the 
public  service  corporation  is  permanently  to  participate 
in  the  public  administration,  it  must  submit  to  public  con- 
trol. Some  basis  other  than  that  of  vested  right  must 
be  sought  for  the  security  of  private  capital  employed  in 
the  public  business.    That,  however,  is  another  story. 

It  is  sufficient  here  to  add  that  present  conditions  are 
intolerable.  By  means  of  the  act  of  1903  the  people  of 
Chicago  have  sought  to  create  conditions  that  will  make 
the  interests  of  the  city  and  of  the  companies  much  more 
nearly  identical,  and  lead  to  greatly  improved  relations, 
with  adequate  public  control.  Conservative  men  hope  that 
this  attempt  will  succeed.  If  other  solution  of  the  problem 
be  not  found,  and  that  speedily,  public  ownership  is  inevita- 
ble and  desirable. 

91 


MUNICIPAL  GOVERNMENT 


THE  RECOVERY  OF  REPRESENTATIVE 
GOVERNMENT  * 

TAEMOCRACY  as  a  form  of  government  has  never 
quite  ceased  to  be  on  trial.  It  is  in  our  time  newly 
challenged  to  justify  its  claims.  Great  as  are  its  achieve- 
ments, it  has  in  some  measure  disappointed  the  hopes  of 
its  earher  advocates.  It  has  left  undone  many  things 
wliich  they  expected  it  to  have  done,  and  done  many  things 
of  which  they  did  not  dream.  This  is  in  part  due  to  the 
tremendous  changes  which  it  has  wrought. 

Modern  democracy  has  had  to  meet  difficulties  which 
could  not  have  been  foreseen.  Government  until  a  cen- 
tury ago  dealt  chiefly  with  the  affairs  of  rural  populations. 
Cities  in  the  modern  sense  did  not  exist.  The  population 
of  the  few  great  towns  was  composed  mainly  of  public 
functionaries  and  small  shopkeepers  and  artisans.  Trade, 
aside  from  some  commerce  by  sea,  was  relatively  petty  and 
local.  Each  community  was  commercially  well  nigh,  if  not 
quite,  independent.  Travel  was  difficult  and  intercom- 
munication slow.  The  chief  concerns  of  government  were 
aggressive  and  defensive  warfare,  the  settlement  of  the 
claims  of  rivals  for  divine  authority  to  rule,  and  the  per- 
petuation of  the  enormous  special  privileges  of  the 
governing  class. 

It  was  the  vast  achievement  of  military  despotism  to 

*Reprinted   from   "The   World   Review,"   Chicago,   May  4,  1901. 
The  conclusion  is  from  a  fuller  MS.  version. 

95 


ESSAYS  AND  ADDRESSES 

weld  the  detached  and  warring  groups  of  kinsmen  known 
to  us  as  village  communities  into  great  nations  having 
definite  territories,  uniform  laws,  and  comparative  freedom 
from  local  disorder.  It  is  the  still  greater  achievement  of 
democracy  to  have  recovered  something  of  the  local  self- 
government  and  personal  freedom  of  the  village  com- 
munity, while  retaining  the  wide  national  authority  which 
despotism  had  won.  The  evolution  has  been  from 
self-governing  groups  of  kinsmen,  through  the  military 
despotism  of  the  feudal  monarchy,  to  the  complex  and 
powerful  democracy  of  a  continent,  from  freedom  with 
local  disorder  to  liberty  with  general  security. 

The  security  of  life  and  property  and  opportunity  thus 
won  prepared  the  way  for  modern  progress.  How  great 
that  progress  is  we  do  not  yet  realize.  We  are,  however, 
conscious  that  it  has  put  a  great  strain  upon  the  democratic 
institutions  which  have  made  it  possible.  When  we  recall 
the  tremendous  sacrifices  by  which  these  institutions  were 
won  we  realize  why  they  were  hailed  as  final.  With  self- 
government  achieved,  men  turned  from  the  knight-service 
of  feudalism  to  their  private  pursuits,  leaving  the  new 
political  machinery  more  and  more  to  the  politicians. 
Having  won  liberty  and  security  they  accepted  and  en- 
joyed them.  Under  these  conditions  democracy  has  thus 
far  worked  out  its  results.  That  the  people  would  firmly 
hold  and  exercise  the  powers  of  government  was  expected. 
Indeed,  government  was  to  be  by  the  people  as  well  as  of 
and  for  them.  Instead  of  this,  while  they  enjoyed  to  the 
full  the  private  liberty  and  security  that  were  the  first 
fruits  of  democracy,  the  powers  of  their  government  have 

96 


REPRESENTATIVE    GOVERNMENT 

passed  more  and  more  into  the  hands  of  political  bosses 
and  party  managers.  That  the  complex  machinery  of 
popular  government  has,  under  such  conditions,  fairly 
performed  its  functions  must  be  conceded.  In  fact,  that 
life  and  opportunity  and  property  have  been  so  widely 
secured  under  so  imperfect  an  administration  of  democratic 
institutions,  is  conclusive  of  their  superiority. 

The  security  of  life  and  opportunity  and  property, 
though  fundamental,  is  by  no  means  all  that  democracy 
holds  in  its  keeping  for  the  race.  Indeed,  it  is  but  the  basis 
for  the  achievement  of  what  is  most  worthy.  On  this 
foundation  within  a  century  has  been  reared  a  super- 
structure at  which  we  may  well  marvel.  This  material 
achievement,  with  its  vast  industries,  its  extraordinary 
facilities  of  transportation,  and  its  great  cities,  has  added 
greatly  to  the  task  of  government.  This  is  especially  true 
in  America,  where  modern  democracy  has  been  least  tram- 
melled, and  where  its  tendencies  may  be  most  profitably 
studied. 

The  very  success  of  democracy  has  here  brought  it  face 
to  face  with  problems  of  government  which  the  founders 
of  the  American  commonwealth  could  not  have  foreseen 
and  for  which  they  made  no  adequate  provision.  Political 
institutions  through  which  rural  communities  obtained  the 
blessings  of  self-government  have  been  found  inadequate 
to  secure  them  for  the  growing  mass  of  people  known  to 
us  as  the  modern  industrial  city.  The  attempt  to  govern 
the  city  simply  as  a  big  village,  here  and  there  adding  an 
independent  commission  or  board  to  stop  a  leak  or  provide 
for  a  new  need,  has  of  course  led  to  failure.    The  so-called 

97 


ESSAYS  AND  ADDRESSES 

government  of  almost  every  American  city  is  a  huge  hotch- 
potch of  warring  officials  and  boards.  In  the  city  of  Chi- 
cago, for  example,  there  are  some  fifteen  more  or  less  in- 
dependent bodies  which  exercise  the  power  of  taxation. 
The  citizens  do  not  have  to  go  anywhere  to  be  taxed.  It  is 
the  failure  of  modern  democracy  to  provide  adequately 
for  the  government  of  cities  that  has  given  rise  to  most 
misgiving,  and  led  to  the  new  call  upon  it  to  justify  its 
claims. 

The  failure  of  popular  government  in  the  city  is,  how- 
ever, but  a  sjTnptom  of  the  disorder.  Modern  liberty  and 
security  have  made  the  industrial  city  a  magnet  of  irresisti- 
ble power.  An  endless  migration  from  the  country  to  the 
city  is  transforming  a  rural  to  an  urban  population.  But 
the  city  is  closely  related  to  the  country.  They  are  but 
parts  of  a  vast  industrial  community.  Forces  wliich  in 
our  time  so  plainly  operate  to  divert  the  institutions  of 
popular  government  from  public  to  private  ends  in  the 
city,  so  operate  only  less  plainly  in  the  country.  The  per- 
version is  only  more  obvious  in  the  city  but  not  more  real. 
Neither  the  country  nor  the  city  can  now  live  to  itself  alone. 
The  concern  of  one  is  the  concern  of  the  other.  Both  are 
intensely  commercial.  They  alike  depend  on  an  industrial 
system  which  has  become  as  wide  as  the  world. 

The  misgovernment  of  which  we  complain  is  but  an  inci- 
dent of  modern  commercialism.  It  is  commercialism  that 
has  developed  the  marv^ellous  facilities  of  modern  trans- 
portation. It  is  commercialism  that  has  reared  our  cities. 
It  is  commercialism  that  has  captured  the  machinery  of 
popular  government.    It  is  commercialism  that  has  created 

98 


REPRESENTATIVE    GOVERNMENT 

the  monopoly  corporation.  It  is  commercialism  that  is 
diverting  the  institutions  of  democracy  from  the  service 
of  all  to  the  service  of  few.  Thus  individual  liberty,  the 
end  sought  by  modern  democracy,  is  now  threatened  by  the 
industrial  development  to  which  it  led. 

We  shall  have  to  recur  to  the  point  of  view  of  the 
fathers  to  see  how  far  we  have  drifted  from  the  intended 
course.  The  government  which  they  organized  was  to 
derive  its  powers  from  the  consent  of  the  governed.  This 
consent  was  to  be  manifested  by  something  more  than  mere 
acquiescence.  It  contemplated  the  active  participation  by 
the  citizens  in  a  government  which  was  to  be  solely  their 
own  and  directly  controlled  by  them.  Official  station, 
whether  high  or  low,  was  to  be  a  public  trust.  Public  office 
was  to  be  an  opportunity  for  service,  not  a  castle  to  be  pri- 
vately held  and  enjoyed.  All  officials  were  to  be  merely 
servants  of  the  people,  exercising  for  limited  periods  only 
delegated  powers.  In  a  word,  the  government  was  to  be 
representative.  It  was  not  to  be  a  source  but  an  expression 
of  authority.  The  people,  as  an  aggregate  body,  were  to  be 
sovereign;  all  officials,  from  president  to  constable,  were 
to  be  merely  their  agents. 

The  founders  of  the  American  commonwealth  claimed 
only  representative  authority.  It  was  "  We,  the  People  of 
the  United  States"  who  ordained  and  established  "this 
Constitution  for  the  United  States  of  America."  The 
resulting  government  was  a  self-achievement,  a  growth 
from  within,  not  a  benefaction  from  without.  It  was  thus 
an  expression,  not  a  source  of  authority.  This  authority 
was  to  be  exercised  by  the  legislative,  executive,  and  ju- 

99 


ESSAYS  AND  ADDRESSES 

dicial  departments  of  the  government.  These  departments 
held,  in  the  aggregate,  all  the  powers  delegated  by  the 
sovereign  body  to  its  agents. 

Reliance  was  placed  in  these  several  departments  of 
government  in  the  order  in  which  they  are  named  in  the 
Constitution.  The  legislature  was  mainly  relied  on  to 
secure  the  blessings  of  liberty  in  perpetuity  to  all  the  peo- 
ple. The  executive  was  merely  to  execute  the  laws  duly 
enacted,  his  participation  in  legislation  being  merely  ad- 
visory and  negative.  The  judiciary  was  to  exercise  the 
judicial  power  and  incidentally  act  as  a  final  negative 
check  on  both  the  legislature  and  the  executive.  The  long 
struggle  for  self-government  had  been  waged  against  a 
king.  It  was  by  a  parliament,  which  had  gradually  be- 
come more  representative,  that  he  had  been  forced  to  yield 
his  claims  to  arbitrary  power.  It  was  through  the  legisla- 
ture that  relief  had  come  from  the  oppression  of  the  crown. 
It  was  inevitable  that  a  people  who  had  but  just  emerged 
from  such  a  contest,  in  seeking  to  secure  the  blessings  of 
liberty  to  themselves  and  their  posterity,  should  mainly 
rely  on  a  legislature  to  be  by  them  chosen  at  brief  intervals. 
They  did  not  for  a  moment  imagine  that  representatives 
selected  by  themselves  for  short  terms  would  ever  fail 
faithfully  to  represent  them.  Hence,  in  framing  the  new 
government,  the  legislatm"e  was  given  free  rein,  while  the 
executive,  although  elective,  was  carefully  curbed.  This, 
it  was  assumed,  would  eliminate  arbitrary  power,  destroy 
special  privilege,  and  secure  a  rule  in  the  interest  of  aU. 
It  was  not  suspected  that  the  members  of  legislative  bodies 
could  ever  be  representative  of  special  interests,  or  that  it 

100 


REPRESENTATIVE    GOVERNMENT 

was  possible  they  might  become  irresponsive  to   public 
opinion. 

Such  was  the  plan  of  the  founders.  The  legislature, 
speaking  directly  and  solely  for  the  people,  was  to  make 
the  laws.  The  executive,  aside  from  the  exercise  of  an  in- 
fluence in  legislation,  mainly  negative,  was  to  execute 
them.  The  judiciary  was  to  interpret  and  apply  them 
and  restrain  action  beyond  the  limits  of  delegated  au- 
thority. The  entire  government  was  to  be  representative. 
Public  opinion  was  to  rule.  The  people,  as  individuals, 
were  to  obey  the  laws  thus  enacted  and  enforced  by  their 
sole  authority.  How  has  the  practice  differed  from  the 
plan?    The  answer  is  obvious  on  every  hand. 

The  facts  of  the  situation  are  too  well  known  to  require 
a  full  re-statement  here.  The  government  of  the  people 
has  become  a  government  by  and  for  private  interests. 
The  representatives  of  special  privilege,  driven  from  pal- 
aces and  baronial  halls,  have  intervened  between  the  people 
and  their  government.  The  avenues  to  the  public  service 
lead  by  the  lodges  of  the  political  bosses.  Men  worthy  to 
represent  the  people  more  and  more  refuse  to  pass  under 
the  yoke.  We  have  come  to  a  time  when  our  officials  no 
longer  lead  or  even  represent  public  opinion,  when  there  is 
not  a  man  in  public  life  who  can  speak  with  authority  to  the 
country  on  any  question  of  the  hour.  To  realize  the  change 
from  earlier  days,  imagine  a  national  commission  to  sug- 
gest financial  legislation  to  Alexander  Hamilton  or  Sal- 
mon P.  Chase,  or  an  Abraham  Lincoln  in  the  midst  of  war 
without  a  policy,  but  with  his  ear  to  the  ground  striving 
to  detect  some  stray  current  of  destiny  on  which  to  embark. 

101 


ESSAYS  AND  ADDRESSES 

This  is  not  all.  The  agencies  of  government  have  not 
merely  ceased  to  be  representative  of  the  people ;  they  have 
become  the  willing  servants  of  special  interests.  A  genera- 
tion after  the  Civil  War  passed  before  legislation  was 
obtained  to  repair  the  financial  damage  which  it  wrought. 
Yet,  at  the  behest  of  special  interests,  Congress  has  again 
and  again  by  law  conferred  on  them  the  power  to  tax  all  to 
make  possible  the  payment  of  benevolent  wages  to  some. 
Indeed,  the  ability  to  initiate  legislation  seems  to  have 
all  but  departed  from  Congress.  Aside  from  routine 
work  it  seldom  acts,  save  in  response  to  pressure  from  the 
interested  promoters  of  special  legislation.  The  situation 
in  the  States  is  even  worse.  The  State  governments  of 
New  York  and  Pennsylvania  are  republican  only  in  form. 
In  several  States  special  legislation  can  be  privately  ar- 
ranged for  by  seeing  a  single  boss.  In  every  State  the 
meeting  of  the  legislature  is  widely  regarded  as  a  public 
calamity,  and  its  adjournment  as  a  deliverance  from 
present  danger.  Even  worse  is  the  municipal  situation. 
Speaking  generallj^  the  public  service  corporation  holds 
almost  undisputed  sway.  Its  paid  retainers  occupy  the 
council  chamber  of  almost  every  American  city,  often  sit 
in  the  mayor's  chair,  and  make  of  the  city  hall  a  place  of 
merchandise  for  an  odious  traffic  in  public  rights  for 
private  gain.  Membership  in  most  city  councils  has 
ceased  to  be  an  honor,  and  even  raises  a  presumption  of 
low  if  not  corrupt  character.  Happily  Chicago  has  be- 
come an  exception  to  this  rule. 

Mr.  John  J.  Chapman  has  pointed  out  in  "The  At- 
lantic'Monthly "  that  "misgovernment  in  the  United  States 

102 


REPRESENTATIVE    GOVERNMENT 

is  an  incident  in  the  history  of  commerce."  He  holds  that 
"the  capture  of  government  by  commerciahsm"  is  due 
to  "the  growth  and  concentration  of  capital  which  the 
railroad  and  the  telegraph  made  possible";  that  the  Civil 
War  left  "the  machinery  of  our  government  in  a  particu- 
larly purchasable  state";  that  it  left  the  people  "party 
mad,"  with  political  power  "condensed  and  packed  for 
delivery";  that,  at  the  moment  "when  the  enthusiasm  of  the 
nation  had  been  exhausted  in  a  heroic  war,  .  .  .  the 
best  intellect  of  the  country  was  withdrawn  from  public 
affairs  and  devoted  to  trade";  and  that,  "during  the 
period  of  expansion  that  followed,  the  industrial  forces 
called  in  the  ablest  men  of  the  nation  to  aid  them  in  getting 
control  of  the  machinery  of  government." 

The  process,  silently  effected  since  the  Civil  War,  by 
which  the  motive  power  behind  party  organization  has 
passed  over  from  principles  to  money,  may  now  be  clearly 
seen.  The  extension  and  consolidation  of  railroads,  the 
creation  and  growth  of  public  service  and  other  monopoly 
corporations,  the  increase  in  the  value  of  public  grants  or 
franchises,  and  the  vast  gains  obtainable  by  combination 
with  exemption  from  competition,  have  led  to  the  capture 
of  the  agencies  of  government  by  commercialism,  to  a  new 
form  of  the  old  struggle  between  special  privilege  and 
equal  opportunity. 

The  fall  of  the  feudal  monarchy,  to  give  place  to 
modern  democracj^  marked  a  defeat  but  not  the  destruc- 
tion of  special  privilege.  It  has  never  surrendered  nor 
given  up  the  pursuit  of  its  main  purpose.  Forced  from  one 
position   after   another,   in   our  time   it   skilfully   adapts 

103 


ESSAYS  AND  ADDRESSES 

itself  to  changed  conditions,  assumes  the  plain  garb  of 
citizenship,  seizes  the  reins  of  power,  creates  under  forms 
of  law  artificial  means  by  which  to  monopolize  industry, 
destroys  equal  opportunity,  appropriates  for  a  few  ad- 
vantages which  belong  to  all,  and  proclaims  that  the  re- 
sult is  but  a  natural  product  of  an  inevitable  evolution. 

The  problem  of  democracy  in  our  day  is  how  to  make 
the  government  of  the  people  a  government  by  and  for 
them,  how  to  secure  for  all  the  blessings  which  have  re- 
sulted and  shall  result  from  the  liberty  and  security  which 
were  its  first  fruits.  To  this  end  the  institutions  of 
democracy  must  again  in  some  way  become  representative 
of  the  people. 

It  is  true,  as  Mr.  Godkin  says,  that  "the  democratic 
world  is  filled  with  distrust  and  dislike  of  its  parliaments, 
and  submits  to  them  only  under  pressure  of  stern 
necessity";  and  that  "the  representative  system,  after  a 
century  of  existence,  imder  a  very  extended  suffrage,  has 
failed  to  satisfy  the  expectations  of  its  earlier  promoters." 
Whether  it  will  "make  way  in  its  turn  for  the  more  direct 
action  of  the  people  on  the  most  important  questions  of 
government,  and  a  much-diminished  demand  for  all  legis- 
lation whatever,"  as  Mr.  Godkin  thinks  likely,  depends 
on  the  success  or  failure  of  the  present  widespread  effort 
to  make  the  agencies  of  government  again  responsive  to 
public  opinion. 

The  growing  distrust  of  legislative  action  has  led  to  a 
mistake  in  the  remedy.  The  tendency  has  been  to  abandon 
the  legislature,  seek  temporary  refuge  in  the  executive. 


104 


REPRESENTATIVE    GOVERNMENT 

and  make  the  final  stand  in  the  courts.  Thus,  as  our  legis- 
lators have  become  less  representative  of  public  and  more 
of  private  interests,  we  have  sought  relief  in  an  increase  of 
affirmative  executive  power  and  a  larger  use  of  the  nega- 
tive authority  of  the  courts.  The  retreat  has  been  marked 
by  various  attempts  to  cripple  the  legislative  authority 
before  leaving  it  to  the  control  of  special  interests. 

Thus,  most  legislatures  are  now  permitted  to  meet  regu- 
larly but  once  in  two  years,  the  sessions  of  some  are  closely 
limited  in  time,  and  the  tendency  is  further  to  limit  their 
powers.  Along  with  these  changes  increased  powers 
have  been  lodged  in  the  executive.  The  same  tendency  has 
marked  municipal  action.  Distrust  of  the  council  has 
led  to  further  limitation  of  its  authority.  The  powers  of 
the  mayor  have  been  steadily  increased,  and  commissions 
and  boards  have  been  multiplied  to  meet  new  needs,  in 
preference  to  restoring  the  authority  of  the  council. 

Acquiescence  in  the  control  of  our  legislative  bodies  by 
special  interests,  however  their  powers  be  limited,  is  a 
fatal  blunder.  Nothing  short  of  final  authority  will  long 
satisfy  the  forces  that  have  so  largely  secured  control  of 
American  legislation.  To  the  extent  we  retire  upon  the 
executive  and  the  courts,  we  invite  them  to  follow.  They 
have  already  acquired  undue  influence  in  executive  cham- 
bers, and  signs  are  not  wanting  of  their  purpose  to  add 
the  courts  to  their  possessions.  Then,  too,  to  place  in 
the  hands  of  a  single  executive  other  than  merely  adminis- 
trative powers  is  to  resort  to  the  dictator.  It  has  been 
truly  said  that  the  essence  of  monarchy  is  not  so  much  the 


105 


ESSAYS  AND  ADDRESSES 

presence  of  the  king  as  the  absence  of  the  people  in  all 
the  important  transactions  of  government.  The  remedy 
for  existing  ills  is  not  further  checks  and  balances.  We 
already  spend  too  much  energy  in  merely  operating  the 
machinery  of  government.  Its  agencies  must  be  simpli- 
fied and  made  more  directly  responsive  to  public  opinion. 
Democracy  means  government  in  the  interest  of  all.  It 
cannot  surrender  control  over  any  of  its  agents,  or  permit 
the  intervention  of  the  few  between  the  people  and  those 
who  exercise  their  authority.  A  professed  despotism  is 
greatly  to  be  preferred  to  government  by  a  rapacious  oli- 
garchy ruling  under  the  forms  of  democracy. 

We  have  seen  that  the  evils  resulting  from  the  capture 
of  government  by  commercialism  are  most  obvious  in  the 
city.  Indeed,  in  the  view  of  many  municipal  misrule  is 
the  one  great  failure  of  democracy  in  America.  The  truth 
is  that  it  is  only  the  most  acute  and  obvious  symptom  of  a 
general  disorder.  The  rich  spoils  sought  by  special  priv- 
ilege are  found  in  greater  abundance  in  the  city.  That  is 
all.  No  cure  can  be  complete  or  adequate  that  does  not 
reach  the  seat  of  the  disease.  Hence  the  recovery  of  repre- 
sentative government  must  begin  in  the  cities.  Unless 
it  succeeds  there,  the  effort  will  fail.  Its  success  there  will 
be  speedily  followed  by  its  triumph  everywhere.  The  at- 
tempt to  reform  municipal  government  by  the  creation  of 
complex  machinery  to  limit  the  power  of  the  council  has 
failed.  The  experience  of  "Greater  New  York"  is  con- 
clusive of  this.  The  truth  is  that  the  only  effective  remedy 
lies  in  a  direct  attack  upon  the  council  itself.  The  line  of 
least  resistance  lies  in  the  application  of  the  remedy  at  the 

106 


REPRESENTATIVE    GOVERNMENT 

seat  of  the  disorder.  The  city  council  is  openly  controlled 
by  private  interests.  It  must  be  made  representative  of 
the  people.    This  done,  all  else  will  follow.* 

*  This  article  was  originally  written  as  the  opening  portion  of 
a  larger  paper.  The  article  that  appears  elsewhere  in  this  volume, 
entitled,  The  Municipal  Voters'  League  of  Chicago,"  was  the  conclud- 
ing portion  of  the  complete  paper. 


107 


MUNICIPAL  FRANCHISES* 

'I  ^7"  E  are  to  discuss  municipal  franchises  in  their  relation 
to  municipal  administration.  This  relation  involves 
some  fundamental  questions  of  public  policy.  It  calls  for 
an  inquiry  into  the  nature  and  function  of  the  public 
service  corporation.  The  writer  does  not  assume  to  be 
qualified  to  speak  in  this  presence  of  the  franchise  situa- 
tion in  Boston.  He  believes  what  follows  to  be  generally 
applicable  to  present  conditions  in  most  American  cities. 

Inquiry  into  the  causes  of  municipal  misrule  in  America 
leads  straight  to  the  door  of  the  public  service  corporation. 
It  is  always  to  be  remembered  that  the  public  service  cor- 
poration is  but  a  group  of  private  citizens  having  authority 
to  perform  services  of  a  public  character.  It  is  an  arti- 
ficial creation  of  law.  The  public  need,  not  its  members' 
greed,  alone  justifies  its  existence.  The  multiplication 
and  growth  of  cities  and  the  increasing  demand  for  public 
utilities  have  led  to  the  rapid  development  of  these  cor- 
porations. They  have  year  by  year  increased  in  numbers 
and  acquired  new  power.  They  are  to-day  a  public  menace 
in  every  American  city. 

The  term  municipal  franchise,  as  popularly  used,  may 
be  defined  as  a  grant  by  a  municipality  to  a  public  service 
corporation  of  a  power,  license,  or  permit  to  engage  in  an 

*An  address  before  The  Twentieth  Century  Club,  Boston,  October 
16,  1901.  Published  in  pamphlet  form  by  The  Public  Franchise 
League,  Boston,   1902. 

108 


MUNICIPAL   FRANCHISES 

enterprise  of  a  public  nature  and  to  use  public  property 
or  facilities  in  its  prosecution.  The  enterprise  must  supply 
a  want  of  a  general,  and  therefore  public,  character,  or  it 
must  require  the  employment  of  extraordinary  powers  and 
privileges  beyond  those  pertaining  to  individuals  or  pri- 
vate corporations.  The  powers  and  privileges  granted 
are  such  as  the  municipality  must  itself  exercise  or  dele- 
gate to  a  public  service  corporation,  as  distinguished  from 
those  private  rights  and  privileges  which  belong  to  all. 

The  tendency  has  long  been  towards  what  is  now  called 
the  municipalization  of  public  utilities;  that  is,  the  public 
ownership  and  operation  of  public  enterprises.  Nearly, 
if  not  quite,  all  public  enterprises  of  general  utility  with- 
out profit-earning  possibilities  under  existing  conditions, 
together  with  some  having  such  possibilities,  have  been 
assumed  and  are  now  conducted  by  the  modern  munici- 
pality. Indeed,  no  line  can  be  drawn  between  municipal 
and  commercial  service.  There  is  a  clear  distinction  be- 
tween public  and  private  enterprises.  No  such  distinction 
exists  between  public  enterprises  conducted  by  municipali- 
ties and  those  committed  to  public  service  corporations. 
Whether  a  given  public  service  shall  be  performed  by  the 
municipality  or  by  a  corporation  is  solely  a  question  of 
public  expediency. 

It  is  too  late  to  raise  the  cry  of  socialism  to  deter  muni- 
cipalities from  entering  more  and  more  into  the  field  of 
public  enterprises.  They,  however,  as  a  rule  still  commit 
to  public  service  corporations  those  enterprises  which  re- 
quire large  capital  and  numerous  employees  and  render 
special  or  unequal  services  to  individual  users  who  pay 

109 


ESSAYS  AND  ADDRESSES 

rates  therefor.  Thus  transportation,  gas,  electricity,  and 
the  telephone  are  yet  largely  committed  to  these  corpora- 
tions. While  the  municipality  continues  unable  or 
unwilling  to  conduct  all  public  enterprises,  it  must  employ 
the  public  service  corporation  to  supplement  what  it  does 
undertake.  It  thus  remains  the  function  of  the  public 
service  corporation  to  conduct  such  public  enterprises  as 
the  municipality,  for  whatever  reason,  is  not  yet  ready  to 
assume.  This,  for  the  present  at  least,  assigns  to  the 
public  service  corporation  an  important  place  in 
municipal  administration.  It  is,  therefore,  desirable  to 
consider  upon  what  conditions  and  subject  to  what  public 
control  these  corporations  may  be  properly  employed  by 
a  self-governing  people. 

It  should  always  be  borne  in  mind  that  public  enter- 
prises, whether  conducted  by  the  municipality  or  by 
public  service  corporations,  exist  for  the  convenience  of 
the  people.  Streets  are  public  highways.  Nothing 
should  be  tolerated  in  the  crowded  thoroughfares  of  a 
great  city  that  does  not  contribute  to  their  use  by  the 
people.  Only  the  general  need  of  water,  light,  and  trans- 
portation can  justify  the  occupation  of  the  streets  by  pipes 
and  wires  and  tracks.  The  sole  test  of  the  extent  of  such 
occupation  is  the  public  need.  To  use  the  streets  of  the 
people  as  a  means  of  conferring  upon  a  favored  few 
special  privileges,  and  to  make  them  the  base  of  a  pri- 
vate monopoly,  is  to  disregard  their  public  character.  To 
make  them  a  source  of  corporate  gain  or  even  public 
revenue,  save  as  an  incident  of  their  use  for  the  people, 
is  to  pervert  them  from  public  to  private  ends.    It  would 

110 


MUNICIPAL   FRANCHISES 

be  as  well  to  permit  a  private  warehouse  in  a  public 
square  as  to  allow  an  unnecessary  car  line  in  the  streets. 

The  streets  of  a  crowded  city  should  be  kept  as  free 
from  obstructions  as  possible.  The  public  convenience  can 
alone  justify  their  occupation  to  any  extent  by  privileged 
persons  or  groups  having  power  to  levy  tolls.  Only  enough 
pipes  and  wires  and  tracks  to  supply  the  wants  of  the 
people  should  be  permitted  in  them.  Anything  beyond 
this  obstructs  the  streets,  leads  to  inconvenience,  and  re- 
sults in  waste.  By  no  possibility  can  the  duplication  of 
the  street  railway  or  telephone  plant,  for  example,  meet 
the  test  of  public  convenience.  Neither  can  duplication, 
with  its  waste  of  capital  and  increased  expense,  per- 
manently result  in  the  best  obtainable  service  at  the  lowest 
profitable  rates.  The  waste  of  duplication  is  fatal  alike 
to  quality  and  to  cheapness. 

We  at  last  realize  that  public  enterprises  are  natural 
monopolies,  or  at  least  that  their  treatment  as  monopolies 
is  essential  to  quality  and  cheapness  of  the  services  which 
they  render.  Indeed,  this  has  long  been  recognized  in 
regard  to  those  public  enterprises  which  are  conducted  by 
the  public  authorities.  The  national  government  tolerates 
no  competition  with  the  postal  service.  Most  American 
cities  own  and  operate  public  water  works  free  from  all 
competition.  Municipalization  everywhere  substitutes 
public  monopoly  for  private  competition.  Municipal 
ownership  means  perpetual  monopoly,  low  interest  on 
investment,  and  exemption  from  taxation.  These  tre- 
mendous advantages,  other  things  equal,  mean  better 
service  and  lower  rates.     The  public  service  corporation, 

111 


ESSAYS  AND  ADDRESSES 

while  employed  to  render  a  public  service  of  which  quality 
and  cheapness  are  the  tests,  should  have  every  element  of 
security  wliich  may  be  safely  granted  by  the  municipality. 
Mr.  Allen  Ripley  Foote  even  urges,  as  a  business  propo- 
sition, that  the  franchise  be  made  "co-extensive  with  the 
want  to  be  supplied  common  to  all  the  citizens;  that  is, 
perpetual,  all-inclusive,  and  exclusive."  He  says  that 
"The  franchise  should  not  only  be  perpetual,  all-inclusive, 
and  exclusive;  it  should  be  granted  untaxed  in  any  way 
and  without  charge  of  any  kind;  and  the  property  of  the 
corporation,  necessarily  used  in  rendering  the  service, 
should  be  untaxed."  * 

These  startling  proposals  assume  that  the  public 
service  corporation  is  indeed  a  public  agency,  that  it  is 
but  an  instrument  of  public  administration.  They  are 
urged  in  order  that  public  services  ma}^  be  rendered  to  the 
people  in  "the  best  manner  known  to  the  art  and  at  the 
lowest  profitable  price."  This  position  is  to  some  extent 
sound.  It  would  be  entirely  sound  if  we  might  rely  on 
such  perfect  control  of  public  service  corporations  as 
would  insure  all  resulting  advantages,  beyond  a  fair  re- 
turn on  the  private  capital  employed,  to  the  users  in 
improved  services  and  lower  rates,  and  if  all  such  ad- 
vantages should  accrue  to  individual  users.  In  \'iew, 
however,  of  the  inefficiency  of  our  municipal  governments, 
largely  due  to  their  corrupting  influence,  we  cannot  safely 
extend  the  powers  and  privileges  of  public  service  corpora- 
tions without  providing  increased  means  of  public  control. 
Nor  should  individual  users  of  the  serv^ices  which  they 

Municipal  Affairs'*  for  June,  1897. 

112 


MUNICIPAL   FRANCHISES 

render  receive  all  the  benefits  which  can  be  obtained  in 
return  for  increased  elements  of  security  granted  to  public 
service  corporations.  Few  public  services,  if  any,  are 
rendered  to  citizens  equally.  The  streets  used  by  public 
service  corporations  are  owned  in  common  by  all  the 
people.  Their  use  by  such  corporations  to  render  unequal 
services  to  individual  users,  often  at  considerable  public 
expense,  without  some  return  to  the  public  treasury,  is  not 
now  regarded  favorably. 

This  brings  us  to  the  perplexing  question  of  compensa- 
tion for  municipal  grants  to  public  service  corporations. 
What  forms  shall  it  take?  Shall  it  be  exacted  in  cash  pay- 
ments to  the  public  treasury,  in  street  improvements  and 
services,  in  reduced  rates  to  the  users,  or  in  all  these  forms? 
These  are  now  burning  questions.  That  compensation 
shall  be  exacted  for  municipal  franchises  is  at  least  gen- 
erally accepted.  There  is  as  yet  no  consensus  of  opinion 
in  regard  to  the  form  it  shall  take. 

We  have  seen  that  the  test,  whether  a  given  public  en- 
terprise shall  be  prosecuted,  is  the  public  need  or 
convenience;  that  it  is  not  permissible  to  allow  the  streets 
to  be  obstructed  solely  or  mainly  for  private  gain  or  even 
public  revenue.  It  follows  that,  when  it  is  made  to  appear 
that  the  public  convenience  requires  that  a  public  enterprise 
be  undertaken,  the  first  consideration  is  good  service. 
This  calls  for  the  best  obtainable  facilities  and  the  necessary 
investment  to  secure  them.  When  the  public  service  cor- 
poration is  employed,  there  are  four  distinct  interests  to 
be  considered.  These  are:  first,  the  private  capital  in- 
vested; second,  the  individual  user  of  the  service;  third, 

113 


ESSAYS  AND  ADDRESSES 

the  abutting  property  owner;  fourth,  the  general  pubUc. 
The  capital  should  have  security  and  a  fair  return  for  its 
use.  The  individual  user  should  have  good  service  at  just 
rates.  The  abutting  property  owner  should  be  compen- 
sated, by  way  of  street  improvements  or  services,  for  any 
special  damages  suffered  by  reason  of  the  enterprise. 
The  general  public  should  receive  such  cash  payments  as, 
in  addition  to  other  exactions,  will  leave  to  the  corporation 
only  sufficient  income  to  pay  operating  expenses,  and  a 
fair  return  on  the  private  capital  invested. 

There  is  a  sharp  controversy,  which  promises  to  grow 
sharper,  whether  the  demand  of  individual  users  for  the 
lowest  possible  rates  for  services,  or  that  of  the  general 
public  for  a  cash  revenue  from  public  enterprises,  should 
have  the  preference.  The  fact  that  the  enterprise  exists 
primarily  to  render  the  service  points  to  a  reduction  of 
rates  rather  than  to  the  payment  of  revenue  by  way  of 
compensation.  We  rely  too  much  on  indirect  taxation  in 
America.  Taxes,  to  be  alike  just  to  rich  and  poor,  should 
be  \e\ied  on  property  rather  than  on  expenditure.  To 
make  public  enterprises  a  large  source  of  revenue  is  to 
aggravate  the  gross  injustice  to  the  poor  of  taxing  current 
expenditure  rather  than  accumulated  property.  The 
national  government  does  so  much  by  means  of  indirect 
taxation  to  promote  inequality  of  fortune  that  the  evil 
should  not  be  aggravated  by  making  municipal  franchises 
a  large  source  of  public  revenue.  On  the  other  hand,  as 
we  have  seen,  individual  users  are  not  entitled  to  all  the 
benefits  arising  from  the  use  of  property  and  facilities 
owned  by  the  people  in  common. 

114 


MUNICIPAL   FRANCHISES 

The  exaction  of  compensation  should  not  be  made  an 
excuse  for  over-capitahzation.  Compensation  is  the  share 
of  the  public  of  an  income  derived  in  part  from  the  use 
of  public  property  and  facilities.  To  exact  it  in  advance 
by  way  of  a  lump  sum  is  as  vicious  in  principle  as  it  would 
be  to  anticipate  the  proceeds  of  future  taxation.  Even 
when  desirable  to  permit  a  public  service  corporation  in 
lieu  of  compensation  to  erect  a  costly  improvement  to  be 
owned  by  the  city,  it  should  not  be  allowed  to  capitalize  the 
cost.  On  the  contrary,  its  cost  should  be  charged  to  ex- 
pense. The  capital  of  the  public  service  corporation 
should  not  be  allowed  to  exceed  the  value  of  its  tangible 
property  estimated  for  the  use  of  a  going  concern. 

We  may  conclude,  in  respect  to  compensation  for 
municipal  franchises,  that  although  the  primary  consid- 
erations are  quality  and  cheapness  of  service,  the 
abutting  property  owner  and  the  general  public  are  within 
reasonable  limits  to  be  regarded.  The  rights  of  all  should 
be  protected  according  to  the  facts  of  each  case.  Full 
compensation  should  be  exacted  for  all  grants  to  public 
service  corporations.  Its  forms  should  be  determined  by 
the  local  authorities  in  view  of  special  conditions. 

Mere  pecuniary  considerations,  though  important,  but 
touch  the  surface  of  the  question  whether  the  city  should 
continue  to  license  public  service  corporations  to  partici- 
pate for  private  gain  in  the  transaction  of  the  public 
business.  Good  service  at  just  rates  can  be  had  with  either 
public  or  private  ownership.  Where  either  the  one  or  the 
other  has  failed  of  these  results,  the  failure  was  not  inherent. 
The  employment  of  the  public  service  corporation  as  an 

115 


ESSAYS  AND  ADDRESSES 

agency  of  municipal  administration  involves  much  more 
than  the  direct  results  to  the  service  in  which  it  engages. 
Under  the  conditions  which  have  long  existed  and  gener- 
ally still  exist,  such  employment  has  led  to  general 
municipal  misrule  and  widespread  moral  contagion.  A 
self-governing  people  can  bear  financial  loss  and  even 
inefficient  public  administration.  Such  a  people  cannot 
afford  to  arm  artificial  groups  of  citizens  with  authority 
with  which  to  corrupt  the  public  administration  and  per- 
petuate special  privilege. 

The  public  service  corporation,  possessed  of  franchises 
of  untold  value  which  it  has  obtained  as  favors,  is  a 
constant  menace  to  public  order.  It  always  wants  further 
grants.  The  greater  its  success,  the  more  it  is  subject  to 
attack  by  real  or  sham  competitors.  The  larger  its  rev- 
enues, the  greater  are  its  means  of  offence  and  defence. 
The  extent  of  its  wants  and  its  possessions  is  the  measure 
of  its  influence  with  those  who  have  the  power  to  satisfy 
and  protect  them.  Its  every  success  adds  to  its  needs  and 
to  its  power  to  control  municipal  administration. 

Government  by  the  people  is  based  on  the  assumption 
that  all  who  participate  in  it  are  equally  disinterested  and 
alike  devoted  to  the  common  welfare.  The  creation 
within  the  body  of  voters  of  powerful  groups,  having 
special  and  related  interests  which  conflict  with  the  general 
welfare,  adds  greatly  to  the  the  difficulties  of  municipal 
administration.  Yet  this  is  what  the  uncontrolled  public 
service  corporation  involves.  Speaking  generally,  Ameri- 
can cities  are  ruled  by  these  corporations.  They  even  own 
governors  and  legislators  of  States.     Their  paid  retainers 

116 


MUNICIPAL   FRANCHISES 

occupy  the  council  chamber  of  nearly  every  American 
city.  Their  agents  often  sit  in  the  mayor's  chair.  They 
make  of  almost  every  city  hall  a  place  of  merchandise 
for  an  odious  traffic  in  public  rights  for  private  gain. 

The  people  at  the  outset  gave  quite  unnecessary  odds 
to  special  privilege.  In  their  contest  with  artificial 
groups  of  citizens  having  special  interests  they  are  es- 
pecially hampered  by  the  contract  theory  of  licenses  to 
use  public  property  and  facilities.  Such  licenses  are  not 
contracts  in  any  proper  sense  of  the  term.  They  should 
not  be  treated  as  contracts  whose  obligation  may,  under 
no  circumstances,  be  impaired.  There  is  a  clear  distinc- 
tion between  a  contract  to  furnish  materials  and  labor 
for  the  construction  of  a  public  building,  for  example, 
and  an  undertaking  to  conduct  a  continuing  industry, 
which  is  an  essential  part  of  public  administration.  The 
public  service  corporation  can  be  secured,  to  the  full  ex- 
tent of  the  cost  or  value  of  the  facilities  which  it 
contributes,  without  treating  its  license  as  an  irrevocable 
contract.  By  thus  treating  it,  every  grant,  however  ob- 
tained, and  however  prejudicial  to  public  interests, 
becomes  a  vested  right.  No  vote  by  a  city  council  refusing 
a  grant  concludes  anything.  Every  vote  granting  a 
license  to  a  public  service  corporation  fixes  its  rights 
irrevocably  for  a  term  of  years.  Its  defeats  are  but  tem- 
porary checks;  its  victories  are  permanent  conquests. 
Thus,  in  most  American  cities,  while  the  refusal  of  a  grant 
to  a  corporation  settles  nothing,  every  vote  of  a  council 
majority  in  its  favor,  though  secured  by  notorious  bribery, 
creates  a  "contract,"  perhaps  continuing  for  generations, 

117 


ESSAYS  AND  ADDRESSES 

whose  obligation  may  not  be  impaired.  By  this  means 
outrageous  public  wrongs  become  invulnerable  "vested 
rights."  This  is  a  gross  perversion  of  a  constitutional 
doctrine  which  should  be  invoked  only  to  protect  real 
contracts  based  on  adequate  consideration.  The  power 
of  a  legislative  body  to  limit  the  legislative  discretion  of 
its  successors,  in  matters  of  continuing  public  administra- 
tion, should  not  be  tolerated  by  a  self-governing  people. 
It  is  quite  time  to  recognize  the  sharp  distinction  between 
vested  private  rights  and  revocable  public  grants. 

The  people  of  Massachusetts  have  not  taken  kindly  to 
contract  grants  for  fixed  terms.  The  advantages  of  what 
is  known  as  the  Massachusetts  franchise,  a  revocable 
grant  creating  a  tenure  during  good  behavior,  are  admira- 
bly stated  in  the  report  of  the  special  committee  on  street 
railways,  appointed  under  the  act  of  1897,  of  which 
Charles  Francis  Adams  was  the  chairman.  Your  experi- 
ence and  that  of  the  District  of  Columbia  are  conclusive 
that  it  is  not  necessary  to  treat  franchises  as  irrevocable 
contracts  in  order  to  secure  the  investment  of  capital 
required  by  public  enterprises.  The  American  people  so 
highly  venerate  vested  rights  that  they  are  more  likely  to 
protect  what  Washington  Gladden  has  called  "vested 
wrongs"  than  to  do  violence  to  any  legal  right  or  even 
possible  claim  of  equitable  right.  In  fact,  the  cry  of  con- 
fiscation and  socialism  raised  by  representatives  of  public 
service  corporations  is  intended  to  confuse  the  issue  and 
discredit  those  who  at  last  demand  proper  public  control 
of  such  corporations. 

Permit  an  outside  observer  to  warn  you  against  the 

118 


MUNICIPAL   FRANCHISES 

term  franchise.  You  have  recently  under  special  circum- 
stances made  term  grants  to  the  West  End  and  the  Boston 
Elevated  companies.  The  way  thus  opened,  the  term 
grant  threatens  to  become  chronic  here  as  elsewhere.  The 
recent  attempt  of  the  Boston  Elevated  Railway  Company, 
so  neatly  exposed  by  Governor  Crane,  by  means  of  a  term 
grant  for  forty  years  of  the  proposed  Washington  street 
subway,  to  maintain  control  of  the  existing  subway  for  the 
same  period,  indicates  the  possibilities  of  irrevocable  term 
grants.  If  the  object  is  to  tie  the  hands  of  the  people  in 
the  interest  of  private  greed,  nothing  better  for  the  pur- 
pose than  the  irrevocable  term  grant  can  be  devised. 

The  revocable  grant  as  you  have  employed  it  is  gravely 
defective  in  that  it  fails  to  protect  the  corporation  in  the 
event  of  revocation.  The  people  contribute  the  streets  and 
the  business  to  the  enterprise.  The  corporation  contributes 
the  capital  represented  by  the  tangible  property  employed. 
Where  the  grant  is,  as  it  should  be,  exclusive,  there  is  no 
good  will.  The  right  of  the  corporation  to  the  value  of  its 
tangible  property  should  be  fully  recognized.  The  public 
should  always  be  at  liberty  to  "take  over"  the  enterprise, 
or  to  deal  with  a  third  party.  Whenever  it  does  either,  it 
should  pay,  or  cause  to  be  paid,  to  the  existing  corporation 
the  then  cash  value  for  continuing  the  enterprise  of  the 
tangible  property  which  it  has  contributed. 

The  right  of  the  public  service  corporation  to  its  only 
contribution  to  the  enterprise  thus  recognized,  it  can  safely 
make  whatever  investment  is  required.  What  is  of  per- 
haps even  greater  importance,  the  public  will  more  freely 
exercise  its  legal  right  of  control   and  even   revocation 

119 


ESSAYS  AND  ADDRESSES 

when  it  can  do  so  at  any  time  without  palpable  injustice. 
The  corporation  is  entitled  to  this  additional  element  of 
security.  If  conceded,  the  excuse  for  irrevocable  term 
grants  falls  to  the  ground.  The  application  of  this  prin- 
ciple to  your  subway  problem  is  obvious.  If  the  city 
cannot,  or  will  not,  build  the  subway,  let  the  corporation  do 
so  under  a  revocable  grant.  Such  a  grant  might  provide 
that,  in  the  event  of  revocation  within  a  specified  time,  a 
pro  rata  part  of  the  cost  of  the  subway  shall  be  returned  to 
the  company. 

Governor  Crane,  in  his  terse  and  admirable  veto  of  the 
subway  measure,  covers  the  entire  ground  of  public  policy. 
He  says : 

The  surrender  of  rights  which  belong  to  the  public, 
even  for  a  brief  term  of  years,  should  be  permitted  only 
.  .  .  for  controlling  reasons  of  public  policy.  .  .  . 
Tliis  bill,  however,  while  it  does  not  restrict  the  company, 
ties  the  hands  of  the  community.  ...  I  am  unable 
to  give  my  assent  to  a  bill  which  thus  restricts  the  rights  of 
the  public,  .  .  .  while  ...  it  insures  valuable 
exclusive  privileges  to  the  company  in  question  for  so  long 
a  period. 

These  are  memorable  words.  They  place  a  veto  of 
incalculable  value  to  the  people  on  the  bed  rock  of  sound 
principle. 

Statutes  of  limitation  are  nowhere  permitted  to  run 
against  the  people.  Their  hands  should  not  be  tied  by 
any  measure  which  leaves  the  public  service  corporation 
uncontrolled.  The  character  of  such  corporations,  when 
permitted  to  participate  in  the  public  administration  as 
public  agents,  should  not  be  overlooked.    The  commission 

120 


MUNICIPAL   FRANCHISES 

of  an  agent  is  revocable.  If  he  makes  advances  for  his 
principal  in  the  prosecution  of  his  agency  he  may  claim 
their  return.  Such  a  thing  as  a  vested  right  to  conduct 
a  public  enterprise  —  to  participate  in  the  public  adminis- 
tration —  should  not  be  tolerated  by  a  free  people.  Power 
to  dispense  with  the  services  of  agents  employed,  at  least 
at  frequent  intervals,  is  an  essential  condition  of  popular 
government.  If  a  public  agent  is  required  or  permitted 
to  gain  an  interest  by  way  of  private  investment  in  the 
subject-matter  of  his  agency,  that  interest  should  be 
respected.  A  government  of  the  people  should  acquire  no 
right  of  a  citizen  by  means  of  confiscation.  It  is  not 
necessary,  however,  to  confer  continuing  vested  rights  in 
public  enterprises  in  order  to  protect  even  private  invest- 
ments therein.  Such  investments  serve  a  poor  excuse  for 
term  grants  which  leave  the  private  right  unextinguished 
and  the  agent  in  possession  with  strong  claims  for  re- 
newals. 

It  would  be  as  reasonable  in  principle  to  elect  the 
president  of  the  United  States  for  a  term  of  forty  years 
as  it  is  to  make  a  grant  for  a  term  of  forty  years  to  a 
public  service  corporation.  It  would  be  as  reasonable  to 
confer  upon  the  president  during  his  term  of  office  abso- 
lute power  as  it  is  to  invest  municipal  franchises  with  the 
sanctity  of  private  contracts. 

The  wholesome  doctrine  of  the  Supreme  Court  of  the 
United  States,  that  private  property,  when  invested  in  a 
public  enterprise,  is  thereby  stamped  with  a  public  char- 
acter, should  be  applied  to  all  investments  of  public 
service  corporations.    That  private  citizens  should  acquire 

121 


ESSAYS  AND  ADDRESSES 

continuing  vested  rights  in  public  property  or  facilities, 
or  in  the  public  administration,  is  an  intolerable  thing. 

The  uncontrolled  public  service  corporation  is  every- 
where a  menace  to  public  order.  It  ignores  and  tramples 
upon  public  rights,  its  own  rights  are  constantly  imperilled. 
The  pretence  of  competition  has  utterly  failed  to  secure 
good  service  at  first  rates.  When  one  company  occupies 
the  field,  under  a  permit,  to  grant  a  competing  franchise 
is  but  to  arm  a  highwayman  with  a  bludgeon,  a  footpad 
with  a  "sandbag."  Duplication  creates  a  public  nuisance 
and  causes  reckless  waste. 

We  have  recklessly  created  powerful  groups,  having 
adverse  special  interests,  within  the  whole  body  of  voters. 
We  have  turned  these  artificial  creations  loose  to  prey 
upon  the  people,  practicallj'^  without  let  or  hindrance. 
We  have  left  their  regulation  and  control  to  a  compe- 
tition which  was  impossible  or  easily  neutralized.  We 
have  given  them  the  motive  to  corrupt  public  administra- 
tion, and  placed  within  their  grasp  the  means  to  that  end. 
The  public  service  corporation  unrestrained  corrupts  the 
public  administration,  causes  incalculable  pecuniary  loss, 
and  spreads  a  general  contagion  due  to  the  lowering  of 
moral  standards  and  the  multiplication  of  tainted  private 
fortunes. 

The  remedy  for  evils  everywhere  so  obvious  and  so 
generally  acknowledged  is  to  be  sought  in  the  efficient  con- 
trol of  the  public  service  corporation.  If  this  fails  —  and 
it  must  be  conceded  it  may  fail  —  public  ownership  and 
operation  are  inevitable.  The  public  service  corporation 
cannot  be  permitted  to  continue  unrestrained,  if  ours  is  to 

122 


MUNICIPAL   FRANCHISES 

remain  a  government  of  uniform  laws  of  and  for  a  people 
possessing  equal  rights.  Those  interested  in  its  continued 
participation  in  the  public  administration  should  meet  the 
people  half  way  in  devising  means  for  its  effective  control. 
Concessions  should  be  made  on  both  sides.  The  people 
should  abandon  competition  as  a  pretended  means  of  con- 
trol, and  grant  to  each  public  service  corporation  the 
monopoly  of  its  field.  This  will  save  the  waste  of  duplica- 
tion and  double  operation  and  destroy  the  vocation  of  the 
"sandbagger."  They  should  concede  the  right  of  the  cor- 
poration to  just  compensation  for  its  tangible  property 
at  the  termination  of  its  franchise,  whether  by  lapse  of 
time  or  revocation.  These  concessions  made  by  the  peo- 
ple, the  corporations,  as  agents  engaged  in  the  public 
service,  should  submit  to  a  strict  public  control.  This 
control  should  provide  for  pubhcity  of  accounts,  for  the 
expiration  of  all  term  grants  to  a  single  company  at  the 
same  time,  for  the  application  of  the  merit  system  to  em- 
ployees, and  for  full  compensation  for  all  franchises  in 
such  forms  as  the  people  may  desire.  Protect  the  cor- 
poration from  highwaymen,  and  it  can  render  good 
service  at  the  lowest  possible  rates.  Admit  its  right  to  the 
value  of  its  tangible  property  whenever  it  shall  not  be 
permitted  to  continue,  and  it  may  safely  accept  either 
short  or  revocable  grants,  and  at  all  times  make  needed 
extensions  and  improvements.  Eliminate  the  contract 
theory  as  applied  to  franchises,  and  refuse  all  grants  with- 
out full  compensation,  and  the  motive  for  bribery 
disappears.  Remove  the  possibility  of  excessive  profits, 
and  the  desire  to  render  inadequate  service  and  to  evade 

128 


ESSAYS  AND  ADDRESSES 

proper  regulation  vanishes.  Place  the  employees  of 
public  service  corporations  under  the  merit  system,  and 
the  secret  partnership  of  such  corporations  and  political 
bosses  will  cease. 

All  these  are  practicable  measures.  Until  they  have 
been  tried,  it  is  idle  to  say  that  the  public  service  corpora- 
tion cannot  be  controlled.  If  coupled  with  the  referendum 
for  all  grants  of  franchises  on  demand  of  a  reasonable 
percentage  of  the  voters  within  a  time  fixed  by  general 
law,  they  would  take  the  public  service  corporations  out 
of  "politics."  Such  a  consummation  would  clear  the  way 
for  the  recovery  of  representative  government. 

Those  interested  in  the  continued  employment  of  the 
public  service  corporation  will  do  well  to  respond  with 
some  alacrity  to  the  rising  demand  for  its  control.  Of 
one  thing  they  may  be  assured:  existing  conditions  have 
become  intolerable.  The  public  service  corporation  will 
not  be  permitted  much  longer  to  block  all  efforts  for  mu- 
nicipal reform.  It  must  submit  to  proper  public  ocntrol, 
or  it  must  go.    It  must  be  controlled,  or  it  will  be  destroyed. 

If  a  strenuous  attempt  to  control  these  corporations  is 
the  first  step  from  present  intolerable  conditions,  it  is  by 
no  means  the  last  resort  of  the  people.  If  it  fails  —  and  it 
is  by  no  means  certain  to  succeed  —  the  municipahzation 
of  public  necessities  will  proceed  with  increasing  rapidity 
to  the  early  exclusion  of  private  participation  in  the  public 
administration.  If  we  cannot  secure  decent  municipal 
government  while  the  public  service  corporation  occupies 
our  streets,  it  needs  no  prophet  to  predict  its  early  demise. 

It   is   widely   feared    and   urged   that    public   owner- 

124 


MUNICIPAL   FRANCHISES 

ship  and  operation  is  impossible  as  a  practicable  remedy 
because  of  the  large  additions  it  would  bring  to  the  re- 
sources of  the  spoilsmen.  It  is  idle  to  deny  that  this  is 
a  grave  objection.  However,  it  is  but  the  truth  to  say 
that  the  spoilsmen  cling  to  their  odious  traffic  in  order  to 
intrench  themselves  in  places  of  power  that  they  may 
there  serve  and  sandbag  public  service  corporations.  Re- 
move these  suppliants  for  and  receivers  of  special  privi- 
leges at  the  hands  of  those  who  for  the  time  exercise 
the  public  authority,  and  with  them  will  disappear  forever 
the  chief  motive  of  the  spoilsmen.  As  the  merit  system 
gains  ground,  depriving  them  of  patronage,  they  more  and 
more  name  the  employees  of  public  service  corporations. 
Some  of  you  would  be  startled  if  informed  of  the  extent 
to  which  the  service  of  these  corporations  has  passed  into 
the  hands  of  your  councilmen  and  party  bosses.  The  con- 
tinuance of  the  public  service  corporation  will  require, 
as  a  feature  of  its  control,  some  adaptation  of  the  merit 
system  to  its  places  of  employment.  A  large  increase  in 
the  pubhc  service  is  subject  to  grave  objections;  but  even 
this  is  a  less  evil  than  a  great  corporate  service  whose  en- 
trances are  guarded  by  public  officials  and  party  bosses. 
The  domain  of  the  spoils  system  now  embraces  these  cor- 
porations. The  reform  of  the  public  service  will  not 
suffice.  The  reform  movement  must  extend  to  these  pow- 
erful corporations  if  they  are  to  continue  to  be  the 
recipients  of  municipal  franchises. 

The  struggle  for  that  public  order  which  results  from 
just  government  is  everywhere  and  always  against  special 
privilege.    Democracy  aspires  to  secure  government  under 

125 


ESSAYS  AND  ADDRESSES 

which  legalized  special  privilege  shall  yield  to  equal  oppor- 
tunity before  the  law.  A  municipal  franchise  can  have 
no  cash  value  unless  it  confers  some  special  privilege  upon 
the  grantee.  Whatever  of  value  pertains  to  the  right  to 
use  public  property  or  facilities  belongs  to  the  people. 
Gifts  of  the  people's  rights  can  be  obtained  of  those  chosen 
to  represent  them  only  by  improper  means.  The  cash 
value  of  the  stock  and  securities  issued  by  a  public  service 
corporation,  in  excess  of  its  tangible  property,  measures 
the  extent  of  the  special  privilege  it  enjoys.  This  excess 
is  what  it  has  filched  from  the  people. 

Read  in  the  October  "Atlantic"  the  article  entitled 
"The  Piracy  of  Public  Franchises."  Therein  Mr.  Bowker 
summarizes  the  amazing  processes  by  which  the  surface- 
road  and  lighting  companies  of  Manhattan  Island  have 
transformed  actual  investments  believed  to  be  well  within 
$125,000,000,  representing  tangible  properties  which  might 
now  be  duplicated  probably  for  less  than  $100,000,000, 
into  "vested  rights"  represented  by  bonds  and  stocks 
now  quoted  in  the  market  at  $400,000,000.  But 
you  need  not  go  so  far  for  illustrations.  You  have  had 
experience  of  somewhat  similar  transformations.  Esti- 
mate the  difference  between  the  cost  of  duphcating  the 
plants  of  your  public  service  corporations  and  the  present 
selling  price  of  their  outstanding  bonds  and  stocks,  and 
you  will  have  an  accurate  measure  of  the  inefficiency  of 
your  State  and  municipal  governments.  The  difference 
between  the  value  of  the  tangible  properties  of  your  pub- 
lic service  corporations  and  the  selling  price  of  their  out- 


126 


MUNICIPAL   FRANCHISES 

standing  securities  measures  the  extent  to  which  piracy 
of  municipal  franchises  has  proceeded  in  historic  Boston. 
The  time  is  ripe  for  franchise  reform.  With  improved 
conditions  and  a  serious  attempt  to  assume  proper  pubhc 
control,  it  will  be  for  those  who  own  its  securities  to  de- 
termine whether  the  public  service  corporation  shall  have 
a  new  lease  of  life.  The  people  will  not  much  longer 
tolerate  present  evils.  They  will  in  time  demand 
that  the  responsible  managers  of  these  corporations  shall 
neither  be,  nor  deserve  to  be,  in  the  penitentiary;  that 
those  who  derive  dividends  from  their  securities  shall  be 
able  to  plead  not  guilty  to  a  charge  of  receiving  stolen 
goods.  Above  all,  they  will  insist  that  the  public  admin- 
istration shall  cease  to  represent  special  interests,  that  it 
shall  be  indeed  the  public  administration. 


127 


MUNICIPAL   SELF-GOVERNMENT:   THE 
COUNCIL  AND  MAYOR* 

■\/TUNICIPAL  government  in  the  United  States  is 
undemocratic.  The  city  is  the  agent  of  the  State. 
The  people  of  the  State  arbitrarily  govern  the  city.  The 
mosaic  which  we  call  municipal  government  is  the  means 
by  which  the  people  of  the  State  exercise  arbitrary  power 
over  minor  communities  in  matters  purely  local.  The 
exercise  of  such  power  by  indirect  and  complex  means, 
has  resulted  in  bad  municipal  government.  That  it  would 
so  result  was  inevitable. 

Democratic  government  is  an  expression,  not  a  source, 
of  authority.  The  people  governed  is  the  source  of  its 
powers.  The  government  of  the  United  States  derives  its 
powers  from  the  people  of  the  United  States.  The  govern- 
ment of  the  State  derives  its  powers  from  the  people  of  the 
State.  The  government  of  the  city  should  obtain  its 
powers  from  the  people  of  the  city. 

Our  National  and  State  governments  were  created  by 
the  people  to  serve  them  in  different  spheres.  Neither 
derives  authority  from,  nor  acts  as  the  agent  of,  the  other. 
Both  derive  authority  directly  from  the  people, — that  of 
the  Nation  from  the  people  of  the  Nation,  that  of  the  State 
from  the  people  of  the  State.  The  line  between  Nation  and 
State  is  clearly  drawn.  The  government  of  the  Nation 
is  confined  to  those  matters  which  concern  the  entire  people 

*  Reprinted  from  "  The  Atlantic  Monthly,"  March,  1902. 

128 


MUNICIPAL   SELF-GOVERNMENT 

of  the  Nation.  The  line  between  State  and  city  should  be 
as  distinctly  drawn.  The  government  of  the  State  should 
be  confined  to  those  matters  which  concern  the  entire  peo- 
ple of  the  State.  Thus  the  government  of  the  city  would 
be  left  free  to  deal  with  those  matters  which  concern  only 
the  people  of  the  city. 

The  supreme  authority  in  our  system  is  the  people  of 
the  United  States.  They,  as  an  aggregate  sovereign,  by 
means  of  the  Constitution,  created  a  national  government, 
with  certain  well-defined  general  powers.  Incidentally  and 
to  guard  the  exercise  of  the  powers  thus  conferred,  they 
imposed  limitations  on  the  States.  By  the  Tenth  Amend- 
ment they  reserved  to  the  States  and  to  themselves  the 
powers  not  delegated  to  the  national  government.  The 
State  has  appropriated  to  itself  these  reserve  powers.  It 
should  have  left  to  the  people  those  of  local  concern,  to 
be  by  them  conferred  on  the  city.  This  would  have  carried 
out  the  democratic  scheme  of  government  devised  by  the 
fathers,  and  by  them  in  part  applied. 

The  work  of  the  founders  of  the  American  common- 
wealth in  framing  our  State  and  National  governments 
has  been  much  and  justly  admired.  Theirs  was  indeed 
a  splendid  achievement  of  constructive  statesmanship. 
That  they  omitted  to  add  a  simple  and  democratic  plan 
of  municipal  government  is  doubtless  due  to  the  fact  that 
large  cities  did  not  then  exist.  What  have  become  the 
public  necessities  of  city  life  were  unknown.  Such  mu- 
nicipal administration  as  was  required  was  simple  and 
without  important  bearing  on  the  larger  matters  of 
State   and    National   government.      Hence,    in   framing 

129 


ESSAYS  AND  ADDRESSES 

their  scheme  of  government,  the  fathers  of  American 
democracy  overlooked  what  is  now  the  vast  and  widening 
field  of  municipal  activities. 

This  omission  in  the  organization  of  democratic  gov- 
ernment in  America  has  never  been  remedied.  As  mu- 
nicipalities grew,  the  rapidly  multiplying  wants  of  urban 
populations  were  met  by  haphazard  makeshifts.  Insti- 
tutions by  means  of  which  rural  communities  and  small 
villages  had  realized  local  self-government  were  retained, 
and  extended  to  meet  needs  for  which  they  were  not  de- 
vised and  are  not  adapted.  As  the  strain  increased,  the 
State  added  numerous  officials,  boards,  and  commissions. 

Thus  the  government  of  every  American  city  has 
become  a  huge  conglomerate  of  warring  officials  and 
boards  representing  the  State.  Elective  officers  and 
elections  have  been  so  multiplied  that  it  is  a  difficult 
task  merely  to  keep  the  offices  filled.  What  we  call  mu- 
nicipal government  is  too  complex  to  be  understood  save 
by  experts.  The  people,  always  busy  with  their  own 
affairs,  have  more  and  more  left  the  entire  matter  to  the 
tender  mercies  of  the  political  bosses  and  franchise  grab- 
bers. In  this  way  municipal  administration  has  been 
diverted  from  public  to  private  ends. 

The  State,  in  attempting  to  govern  the  city,  has  un- 
duly emphasized  the  executive  view  of  municipal  admin- 
istration. Indeed,  to  the  extent  that  city  government  is 
an  agency  to  express  the  will  of  the  State,  its  function 
is  only  executive.  The  power  to  legislate  is  the  dis- 
tinguishing mark  of  self-government.  The  mere  right 
of  the  people  of  the  city  to  choose  between  rival  aspir- 

130 


MUNICIPAL   SELF-GOVERNMENT 

ants  to  local  executive  office,  under  State  authority,  in- 
volves only  the  power  to  determine  whether  State  laws 
shall  be  strictly  or  loosely  enforced.  To  be  really  self- 
governing,  the  people  of  the  city  must  enjoy  the  right 
to  create  a  body  having  power  to  legislate  for  them  in 
all  matters  of  local  concern. 

The  policy  which  makes  the  city  the  agent  of  the 
State  has  led  to  anomalous  results.  In  Nation  and 
State  the  legislature  is  the  affirmative  power.  It  speaks 
directly  for  the  people.  It  expresses  their  will  in  con- 
tinuing laws  of  general  application.  Its  function  is  to 
determine  public  policies.  The  executive  and  the  judici- 
ary merely  participate  in  the  enforcement  of  the  laws. 
They  deal  with  individual  matters  as  they  arise. 
Their  function  is  to  administer.  In  a  city,  which  exists 
mainly  to  enforce  State  legislation,  these  conditions  are 
reversed.  The  play  is  an  exotic.  The  mayor  is  the  star 
performer.  The  council  plays  but  a  minor  part.  The 
mayor,  when  chosen,  assumes  to  his  constituency  the 
role  of  temporary  dictator.  As  a  representative  of  the 
State,  he  is  subject  to  its  legislative  authority.  Nomi- 
nally an  officer  of  the  city,  he  is  beyond  the  control  of 
its  people. 

The  council  of  a  city,  which  exists  as  a  creature  of 
the  State,  is  at  best  an  unnecessary,  and  at  worst  a  con- 
temptible thing.  The  mayor  and  his  cabinet  might  per- 
form its  part;  indeed,  the  tendency  is  to  confer  upon 
the  mayor  powers  taken  from  the  council.  In  most 
American  cities  it  is  thought  that  bad  municipal  gov- 
ernment is  directly  chargeable  to  the  council.     To  escape 

131 


ESSAYS  AND  ADDRESSES 

evils  lightly  assumed  to  pertain  to  the  council,  the  mayor 
is  given  increased  authority.  The  council,  thus  deprived 
of  most  of  the  poor  powers  which  it  once  possessed,  is 
left  a  derelict  on  the  troubled  sea  of  municipal  misgov- 
ernment. 

The  evils  which  result  from  undemocratic  municipal 
government  extend  far  beyond  the  city.  The  legislature 
of  the  State,  if  empowered  to  deal  with  none  but  matters 
of  general  appUcation,  might  be  a  responsible  and  effi- 
cient body.  Charged  as  it  is  with  the  power,  even  duty, 
constantly  to  intermeddle  in  the  affairs  of  every  munici- 
pality in  matters  purely  local,  its  sessions  have  become 
log-rolling  bees.  Local  measures  clog  its  calendar.  Each 
member  seeks  to  press  such  of  these  as  affect  his  locality. 
A  gang  of  members  from  a  single  city,  acting  as  the  chat- 
tels of  public  service  corporations,  often  coerce  their  fel- 
lows into  action  prejudicial  to  the  public  welfare.  A 
measure  which  sacrifices  the  rights  of  the  people  of  but 
a  single  community  can  rarely  be  expected  to  arouse  to 
effective  opposition  the  people  of  a  great  State.  The 
good  of  the  locality,  often  of  many  localities,  is  sacrificed 
that  the  public  business  itself  may  proceed. 

Thus  the  undemocratic  attempt  by  the  people  of  the 
State  arbitrarily  to  govern  the  city  results  in  making  the 
government  of  both  city  and  State  irresponsible,  ineffi- 
cient, corrupt.  Indeed,  means  better  calculated  to 
divert  the  powers  of  government  from  public  to  private 
ends  could  not  be  devised.  No  man  or  group  of  men 
can  be  trusted  to  exercise  irresponsible  power.  The 
government  of  the  city  by  the  State  violates  the  principle 

132 


MUNICIPAL   SELF-GOVERNMENT 

of  self-government.  It  endangers  the  State  in  the  vain 
effort  to  save  the  city.  It  relieves  the  people  of  the  city 
of  local  responsibility.  It  corrupts  and  paralyzes  both 
State  and  city  administration. 

The  proposal  to  make  the  city  as  independent  of  the 
State  as  the  State  is  independent  of  the  Nation  does  not 
involve  the  loss  of  proper  State  authority  within  the  city. 
The  Nation  exercises  an  authority  within  the  State  which 
extends  even  to  its  individual  citizens.  The  State  must 
continue  to  legislate  generally  for  all  its  people  in  respect 
to  such  matters  of  common  concern  as  crime,  personal 
rights,  the  family,  education,  property,  corporations,  com- 
merce, elections,  and  general  taxation.  These  great  duties 
are  obscured,  often  imperilled,  by  continuous  strife  at  the 
State  capital  over  conflicting  local  interests. 

The  legislation  of  the  State  touching  civic  affairs 
will  continue  to  be  enforced  in  the  city  mainly  by  local 
officials.  Indeed,  the  execution  of  State  laws  in  each  of 
its  communities  by  officers  locally  chosen  is  what  made 
the  State,  despite  undue  centralization  of  legislative 
power,  the  chief  conservator  of  local  self-government. 
It  is  of  much  greater  importance  to  preserve  this  time- 
honored  practice  intact  than  it  is  to  have  all  State  laws 
well  and  uniformly  enforced.  The  vital  objections  which 
lie  to  a  State  constabularj^  lie  equally  to  the  absorption 
by  the  State  of  those  legislative  powers  which  can  be 
locally  exercised. 

What  powers  may  be  locally  exercised?  In  brief,  all 
powers  that  do  not  concern  the  entire  people  of  the  Nation 
or  of  the  State.    Among  these  are  the  power  to  frame  a 

133 


ESSAYS  AND  ADDRESSES 

city  government  and  define  its  authority,  the  police  power 
so  far  as  local,  the  power  of  taxation  for  local  purposes 
including  schools,  the  power  to  establish  and  administer 
streets  and  parks,  the  power  to  supply  public  necessities 
directly  or  by  means  of  the  public  service  corporation, 
and  the  power  to  establish  and  administer  reformatory 
and  charitable  institutions.  It  is  objected  that  the 
people  of  the  city  cannot  safely  exercise  such  powers; 
that  they  are  incapable  of  self-government.  It  is  urged 
that  the  government  of  the  State  must  stand  guard  over 
the  people  of  the  city;  that  it  must  save  them  from  them- 
selves. The  answer  is  obvious.  The  government  of  the 
State  is  not  a  storehouse  of  saving  grace.  It  is  at  best 
but  an  expression  of  the  will  of  the  entire  people  of  the 
State.  It  is  too  often  the  means  by  which  incorporated 
greed  uses  the  public  authority  for  private  ends.  It  is 
impossible  for  the  entire  people  of  a  State  to  know  the 
needs  of  its  several  local  communities  as  well  as  their  own 
people  know  them. 

The  people  of  the  nation  permit  the  people  of  the  State 
to  determine  for  themselves  nearly  all  matters  of  State 
government.  The  people  of  the  State  may  with  like  pro- 
priety permit  the  people  of  the  city  to  determine  for  them- 
selves practically  all  matters  of  city  government.  This 
by  no  means  implies  that  the  exercise  of  this  permissive 
local  authority  shall  be  free  from  proper  constitutional 
and  statutory  limitations.  Municipal  government  may  be 
made  to  conform  to  a  general  State  policy  without  taking 
from  each  municipality  libertj^  largely  to  determine  for 
itself  the  limits  and  the  means  of  its  activities.    The  State, 

134 


MUNICIPAL   SELF-GOVERNMENT 

for  example,  should,  by  definite  law,  protect  the  right  of 
all  its  citizens  freely  to  compete  for  public  employment. 
It  should  establish  laws  of  uniform  application,  providing 
especially  for  such  matters  of  common  interest  as  popular 
education,  the  preservation  of  health,  and  the  regulation 
of  the  liquor  traffic.  It  may  provide  broad  restrictions 
touching  some  matters  of  common  interest,  leaving  the  city 
free  to  add  to  them  if  its  people  so  desire.  It  may  prohibit 
city  interference  in  matters  of  vital  general  concern.  It 
is  for  the  people  of  the  State,  in  framing  its  constitution, 
to  determine  what  matters  shall  be  under  State  control 
without  local  interference,  what  matters  shall  be  left  to  the 
city  subject  to  certain  restrictions,  and  what  matters  shall 
be  under  city  control  without  State  interference. 

The  city  must  act  through  agents.  In  this  it  is  like  the 
State.  It  need  not  rely  on  the  State  for  protection  from 
its  agents.  Restraints  may  be  imposed  on  constituted 
authority  as  well  by  city  charter  as  by  State  constitution. 
The  people  of  the  city  should  be  permitted,  under  proper 
general  limitations,  to  frame  a  city  constitution  or  charter. 
They  should  be  free  to  determine  all  questions  of  municipal 
public  policy.  They  should  possess  power  to  legislate  as 
well  as  power  to  administer.  They  should  enjoy  legisla- 
tive as  well  as  administrative  freedom. 

We  at  last  realize  that  neither  in  State  nor  in  city  is  it 
necessary  to  confer  final  authority  on  public  servants.  It 
is  now  clear  that  there  should  be  ratification,  express  or 
implied,  by  the  people,  of  the  more  important  acts  of  their 
representatives.  There  are  great  possibilities  in  the  grow- 
ing   desire    of    intelligent    citizens    to    participate    more 

135 


ESSAYS  AND  ADDRESSES 

directly  than  heretofore  in  legislation.  The  people  may 
in  time  both  choose  and  direct  their  agents.  They  may 
also  reserve  power  to  pass  on  all  important  legislative  acts 
on  petition  of  a  certain  percentage  of  the  voters  within  a 
fixed  time.  That  by  such  means  the  agents  of  the  people 
may  be  made  responsive  to  their  will  is  believed  by  in- 
creasing numbers.  Private  principals  often  reserve  the 
power  to  reject  or  ratify  the  acts  of  their  agents.  There 
are  even  weightier  reasons  why  the  people  should  reserve 
the  power  to  reject  or  ratify  the  acts  of  public  sei'vants. 
It  is  not  necessary  to  confer  upon  them  unlimited  power. 

The  local  independence  here  advocated  is  required  fully 
to  carry  out  and  make  symmetrical  our  scheme  of  govern- 
ment. When  this  measure  of  local  independence  is 
secured,  ours  will  really  be  a  government  by  the  people. 
The  city  must  be  governed  by  the  people  of  the  city,  if  it 
is  to  be  an  instrument  of  democratic  government.  The 
State  must  surrender  arbitrary  power,  if  it  is  to  be  merely 
an  agency  of  a  self-governing  people.  If  government  bj'- 
the  people  is  desirable,  it  should  alike  obtain  in  Nation, 
State,  and  city. 

This  course  would  leave  each  of  the  three  distinct  gov- 
ernmental agencies  of  the  people  free  to  perform  its 
functions  without  interference  by  the  others.  It  would 
make  each  directly  responsible  to  its  special  constituency. 
It  would  confer  upon  each  practically  exclusive  control 
of  a  few  great  matters  of  common  interest  to  its  people. 
Nothing  so  conduces  to  make  a  representative  government 
efficient  as  to  limit  its  jurisdiction  to  a  few  important  mat- 
ters of  common   interest  to  those  for  whom  it   speaks. 

136 


MUNICIPAL   SELF-GOVERNMENT 

Efficiency  rapidly  decreases  with  the  multiplication  of  the 
subjects  with  which  a  representative  government  deals. 

Our  government,  to  mere  casual  observers,  seems  com- 
plex in  form  and  difficult  to  understand.  Our  national 
government  is,  in  fact,  simple.  It  deals  only  with  those 
great  concerns  of  general  interest  to  the  people  of  the 
United  States.  Our  State  governments  would  be  equally 
simple  if  each  were  confined  to  the  important  matters 
which  concern  its  entire  people.  To  the  attempt  of  the 
States  to  combine  both  general  and  local  functions  is  due 
the  apparently  inextricable  confusion  which  has  so  long 
characterized  our  State  and  municipal  governments. 
Give  to  State  and  city  separate  and  distinct  powers ;  make 
each  directly  responsible  to  its  special  constituency;  per- 
mit neither  to  exercise  other  than  direct  representative 
authority:  the  result  will  be  simple,  responsible,  efficient 
government. 

The  State,  to  the  extent  that  it  has  exercised  arbitrary 
power  over  its  cities,  has  ceased  to  be  democratic.  The 
result  might  have  been  foreseen.  No  despotism  is  so  un- 
restrained as  the  despotism  of  a  crowd.  It  may  be  safely 
asserted  that  nowhere  else  is  municipal  government  so 
irresponsible  as  it  is  in  the  United  States.  When  our  Na- 
tional, State,  and  city  governments  shall  severally  and 
directly  represent  their  respective  constituencies,  when 
none  of  them  shall  exercise  other  than  representative 
powers,  we  may  claim  that  ours  is  in  fact  as  well  as  in 
name  a  democratic  republic. 

The  extent  to  which  the  city  is  made  the  agent  of  the 
State  differs  greatly  in  the  several  States.     In  certain 

137 


ESSAYS  AND  ADDRESSES 

States,  the  legislature,  by  special  acts,  governs  each  city 
separately,  even  in  matters  of  petty  detail.  In  other  States 
the  attempt  is  made  to  limit  legislation  to  acts  general  in 
form  and  applicable  to  all  cities  of  a  given  class.  In  Penn- 
sylvania, it  seems  that  the  legislature,  whenever  the 
administration  of  any  city  becomes  unsatisfactory  to  the 
State  boss,  may  by  special  act  remove  its  mayor,  authorize 
the  governor  to  name  his  successor,  and  directly  despoil  its 
public  service.  The  city  of  New  York  has  long  been  gov- 
erned by  the  legislature  of  the  State.  Its  people  are  merely 
permitted,  from  time  to  time,  to  determine  whether  its 
officials  shall  be  common  criminals,  party  tools,  or  public 
servants.  These  officials,  when  chosen,  are  subject,  in  the 
discharge  of  their  duties,  to  constant  intermeddling  by  the 
legislature.  Some  of  them  are  responsible  to  the  governor, 
and  may  be  by  him  removed.  To-day,  a  city  of  three  and 
a  half  millions,  whose  people  participate  in  the  govern- 
ment of  the  nation,  is  not  even  permitted  to  determine 
for  itself  during  what  hours  its  saloons  shall  be  closed. 
In  Illinois,  although  the  constitutional  prohibition  of 
special  legislation  is  frequently  evaded,  the  city  of  Chicago 
is  greatly  hampered  in  matters  merely  local,  for  want  of 
permissive  power  to  govern  itself.  All  State  interference 
in  matters  purely  local,  whatever  its  extent,  is  pernicious. 
Emancipation  of  the  city  from  State  intermeddling  is 
everywhere  a  crying  need. 

Municipal  government,  if  it  is  to  act  for  the  people  of 
the  city  rather  than  as  an  executive  agent  of  the  State, 
must  possess  full  legislative  as  well  as  large  executive 
powers.     The  more  independent  of  the  State  it  becomes, 

138 


MUNICIPAL   SELF-GOVERNMENT 

the  greater  will  be  its  legislative  powers.  A  representative 
government  must  legislate  as  well  as  execute.  Hence 
municipal  self-government  calls  for  a  powerful  council. 
This  means  public  rather  than  secret,  democratic  rather 
than  despotic  city  government.  The  vice  of  American 
municipal  government  lies  in  that  it  is  mainly  executive, 
and  that  it  acts  for  the  State.  When  it  becomes  repre- 
sentative of  the  people  of  the  city,  the  council  will  voice 
and  the  mayor  will  execute  their  will.  We  shall  then  have 
responsible  municipal  government. 

Much  might  be  said  in  support  of  the  proposal  to  make 
the  mayor  the  administrative  agent  of  the  council.  In 
many  European  cities  he  is  chosen  by  the  council,  and  thus 
acts.  It  is  the  American  method  to  separate  legislative 
and  executive  functions.  Legislators  and  executives, 
elected  by  the  people,  directly  and  severally  represent  them. 
This  division  of  powers  among  direct  representatives  of 
the  people,  justified  by  experience  in  nation  and  State, 
should  be  applied  in  the  city.  We  imderstand  and  know 
how  to  work  a  government  having  distinct  legislative  and 
administrative  departments.  We  know  how  to  apportion 
responsibility  between  legislature  and  executive.  The 
application  of  this  method  to  the  city  will  complete  and 
make  symmetrical  our  system  of  government. 

Thus  it  appears  that  a  municipal  government  directly 
representative  of  and  responsible  to  the  people  of  the  city, 
and  having  distinct  legislative  and  administrative  depart- 
ments, will  strictly  comply  with  American  ideals, 
however  it  may  depart  from  recent  American  practice. 
It  is  undeniable  that  it  will  not  accord  with  such  practice, 

139 


ESSAYS  AND  ADDRESSES 

especially  that  of  recent  years.  The  council,  never  what 
it  should  be,  has  been  gradually  abandoned,  its  powers 
being  assumed  by  the  State  legislature.  This  usurper  of 
arbitrary  authority  has  made  the  mayor  its  local  repre- 
sentative, vesting  in  him  both  executive  and  legislative 
powers.  The  distinction  between  legislation  and  adminis- 
tration in  municipal  government  is  all  but  lost.  In  lieu 
of  municipal  self-government  we  have  despotic  rule.  In 
the  absence  of  means  through  which  its  people  might  gov- 
ern the  city,  the  tendency  has  been  to  rely  on  the  goodness 
and  wisdom  of  the  mayor.  The  resort  has  been  to  the 
dictator.  Yet  with  this  growth  of  despotism  in  our  cities 
American  municipal  government  has  become  more  and 
more  a  "problem." 

There  are  those  who  hold  that  good  municipal  govern- 
ment cannot  be  expected  of  democracy.  Some  even  say 
that  our  experience  is  conclusive  of  its  failure  in  this  field. 
However,  as  thus  far  we  have  not  tried  really  democratic 
methods  in  city  administration,  our  failures  cannot  be  laid 
at  the  door  of  democracy.  We  have  made  full  trial  of 
municipal  government  by  State  legislature  and  autocratic 
mayor  acting  together.  To  this  irresponsible  combination 
our  failures  are  chargeable.  The  remedy  for  evils  thus 
produced  does  not  lie  in  a  further  departure  from  demo- 
cratic methods.  The  failures  of  the  Constitution  are  due 
to  the  unwillingness  of  the  fathers  to  rely  on  the  people 
to  choose  the  president  and  the  members  of  the  senate. 
The  irresistible  tendency  of  our  history  has  been  to  remove 
all  barriers  between  the  people  and  their  government,  to 
make  all  its  agencies  directly  responsive  to  their  will. 

140 


MUNICIPAL   SELF-GOVERNMENT 

This  movement  will  finally  compel  the  application  of 
democratic  methods  to  city  administration.  Its  aim  to 
make  the  American  commonwealth  a  representative 
democracy  is  certain  of  accomplishment. 

Government,  with  us,  has  but  one  possible  source  of 
authority.  Having  repudiated  the  absurd  fiction  of  the 
divine  right  of  a  man  or  group  of  men  to  rule  over  others, 
we  can  draw  no  line  of  exclusion.  Authority  to  govern 
must  come  from  without  or  it  inheres  in  the  whole  people. 
We  have  nowhere  save  in  the  people  any  reserve  of  au- 
thority or  virtue  upon  which  to  draw.  To  say  that  the 
people  of  the  city  cannot  be  trusted  to  govern  themselves 
is  to  admit  once  for  all  the  failure  of  democracy.  The 
people  of  the  city  form  a  rapidly  increasing  proportion  of 
our  population.  If  not  fit  to  govern  themselves,  they  are 
not  fit  to  participate  in  the  government  of  the  State  and 
Nation.  We  are  committed  to  democracy,  and  must  work 
through  it,  however  long  the  way,  to  good  government. 

No  one  who  is  at  all  acquainted  with  history  and  with 
the  vast  interests  of  our  complex  modern  life  expects 
government  of  whatever  form  to  become  an  easy  task. 
Those  who  really  believe  in  democracy  do  not  shrink  from 
the  application  of  democratic  methods  to  city  administra- 
tion because  of  the  difficulties  involved.  That  their  faith 
in  the  people  of  the  city,  even  when  largely  of  foreign 
birth,  is  not  misplaced,  a  single  illustration  indicates. 
The  council  of  the  city  of  Chicago,  though  unwisely 
hampered  by  the  State,  possesses  large  powers.  In  1895 
it  was  absolutely  owned  by  special  interests.  To-day  the 
people  of  Chicago  are  represented  in  its  council  by  over 

141 


ESSAYS  AND  ADDRESSES 

fifty  of  its  seventy  members.  It  is  organized  on  non- 
partisan lines,  the  best  members  being  in  control  of  all 
important  committees.  No  important  measure  to  which 
there  was  popular  objection  has  passed  since  the  reform 
movement  began.  The  Chicago  council  is  to-day  one  of 
the  best  legislative  bodies  in  the  entire  country.  This 
result  has  been  attained  without  waiting  for  organic 
reform. 

The  present  hopeful  movement  for  municipal  reform 
takes  democracy  for  granted.  It  for  the  first  time  seeks 
to  apply  democratic  methods  to  city  administration.  It 
demands  municipal  self-government,  with  council  and 
mayor.  In  the  words  of  Mr.  Delos  F.  Wilcox,  in  advocac}^ 
of  the  excellent  municipal  programme  recommended  by 
the  National  Municipal  League,  "The  hope  of  humanity 
seems  to  lie  in  the  perfection  of  democracy  rather  than  in 
any  retrogressive  step,  in  exalting  rather  than  in  lessening 
popular  responsibility." 


142 


MUNICIPAL    SELF-GOVERNMENT  * 

rilHE  work  of  the  framers  of  the  Constitution  of  the 
United  States  has  been  much  and  justly  admired. 
They  created  a  national  government  to  represent  and  act 
for  the  people  of  the  United  States  in  the  great  matters 
of  national  concern.  They  left  the  people  of  the  States 
free  to  govern  themselves  in  all  matters  not  of  immediate 
national  interest.  The  Nation  and  the  State  became  the 
direct  agents  of  the  people;  the  one,  of  the  people  of  the 
United  States ;  the  other,  of  the  people  of  the  State.  Their 
respective  spheres  of  action  are  distinct.  The  national 
government  speaks  for  the  entire  people;  the  State  gov- 
ernments speak  for  the  people  of  the  respective  States. 
Each  represents  directly  its  own  people  and  is  independent 
of  the  others. 

This  division  of  authority  among  representative  agen- 
cies of  a  free  people  has  been  amply  justified  by  its 
success.  That  it  should  have  been  carried  a  step  further  is 
now  clear.  In  their  scheme  of  government  the  founders 
made  no  adequate  provision  for  the  government  of  cities. 
This  omission  has  not  been  supplied  by  their  successors. 

The  city  as  we  know  it,  with  its  vast  population  and 
complex  life,  was  unknown  until  our  time.  Such  cities 
as  existed  in  the  United  States  a  hundred  years  ago  dif- 
fered little  from  country  villages  in  their  requirements. 

*  An  address  before  the  Twentieth  Century  Club  of  Boston,  Mass., 
January  22,  1904. 

143 


ESSAYS  AND  ADDRESSES 

Means  then  fairly  adequate  gradually  became  wholly  in- 
adequate for  their  government.  To-day  our  greatest  city, 
having  a  population  larger  than  that  of  the  first  thirteen 
States  at  the  adoption  of  the  Constitution,  does  not  know 
from  any  experience  the  meaning  of  municipal  self- 
government. 

The  fundamental  defect  in  American  municipal  gov- 
ernment is  that  it  is  undemocratic.  The  city  is  but  an 
agency  of  the  State.  It  acts  for  the  people  of  the  State, 
not  for  the  people  of  the  city.  True,  the  people  of  the 
city  are  permitted  to  choose  certain  so-called  municipal 
officers;  but  these  in  fact  exercise  locally  the  authority  of 
the  State.  The  city  is  without  other  than  delegated  au- 
thority. Its  people  may  not  collect  or  expend  their  own 
money  for  their  necessary  community  wants  without  per- 
mission of  the  State.  Every  American  city  is  in  fact  a 
State  asylum,  and  its  people  wards  of  the  State.  Our  great 
municipal  populations  have  thus  far  acquiesced  to  be  thus 
held  in  leading  strings,  because  so  accustomed.  But  signs 
of  revolt  are  not  wanting;  and  declarations  of  municipal 
independence  may  soon  be  expected  in  many  of  our  cities. 

The  government  of  the  city  should  express  the  will  of 
its  people  as  the  government  of  the  State  expresses  the 
will  of  its  people.  The  people  of  the  city  should  ordain  its 
charter  as  the  people  of  the  State  ordain  its  Constitution. 
The  city  and  the  State  should  be  as  distinct  as  the  State  and 
the  Nation  are  distinct  from  each  other. 

Representative  government  succeeds  best  when  it  deals 
with  but  a  few  subjects  and  those  of  concern  to  all  for 
whom  it  acts.    The  government  of  the  United  States  has 

144 


MUNICIPAL  SELF-GOVERNMENT 

succeeded,  largely  because  its  jurisdiction  is  limited  to  a 
few  great  subjects  of  national  concern.  Our  State  gov- 
ernments have  become  more  and  more  inefficient  because 
charged  with  the  control  of  many  matters  merely  local 
and  of  constantly  increasing  importance.  Public  officers 
cannot  be  expected  to  protect  interests  in  which  their 
constituents  have  no  interest.  Only  representatives  of 
those  affected  should  act  for  others.  Thus  only  can  proper 
accountability  be  secured.  The  doctrine  of  no  taxation 
without  representation  imphes  that  no  governmental 
action  should  be  taken  except  by  representatives  of  those 
to  be  affected. 

The  increasing  volume  of  local  legislation  tends  to 
paralyze  and  corrupt  all  State  legislation.  Matters  only 
of  local  interest  lead  inevitably  and  directly  to  log-rolling. 
No  government  which  acts  on  many  matters  of  purely 
local  concern,  in  which  its  constituency  has  no  direct  in- 
terest, can  long  remain  either  honest  or  efficient. 

It  would  be  presumptuous  in  me  to  attempt  to  discuss 
your  local  conditions.  However,  it  may  give  point  to 
these  generalizations  to  call  your  attention  to  some  hasty 
gleanings  of  mine  from  the  "Acts  and  Resolves"  of  the  last 
two  sessions  of  the  general  court  of  Massachusetts. 
Surely  a  stranger  might  expect  to  find  in  these  attrac- 
tively printed  volumes  weighty  measures  of  general 
concern  to  all  the  people  of  this  venerable  commonwealth. 
In  lieu  of  many  such  measures,  he  finds  them  nearly  filled 
from  cover  to  cover  with  special  acts  to  control  in  minute 
details  the  local  affairs  of  the  various  cities  of  the  State. 
It  appears  from  the  constitution  of  the  commonwealth 

145 


ESSAYS  AND  ADDRESSES 

that  the  general  court  has  "full  power  and  authority  to 
erect  and  constitute  municipal  or  city  governments,  in  any 
corporate  town  or  towns  in  this  commonwealth,  and  to 
grant  to  the  inhabitants  thereof  such  powers,  privileges, 
and  immunities,  not  repugnant  to  the  constitution,  as  the 
general  court  shall  deem  necessary  or  expedient  for  the 
regulation  and  government  thereof." 

It  is  well  known  that  your  general  court  solemnly 
determines  each  year  what  is  good  for  the  people  of  Bos- 
ton ;  in  short,  that  the  annual  meeting  of  the  general  court 
is  a  sort  of  special  providence  to  the  city.  I  find  from  the 
"Acts  and  Resolves"  of  that  august  body  that  at  its  ses- 
sion of  1902,  it  graciously  permitted  the  city  of  Boston  to 
"widen  Hyde  Park  avenue  to  a  width  not  exceeding 
eighty-five  feet"  :  also  to  do  the  things  (whatever  they 
were)  agreed  upon  between  the  city  and  the  Boston 
Terminal  Companj^  in  respect  "to  the  construction  of  the 
Cove  street  bridge,  so-called";  also  to  settle  with  abutting 
property  owners  for  damages  resulting  from  widening 
Franklin  street;  also  to  sell  its  bonds  "to  the  Trustees  of 
the  Public  School  Teachers'  Retirement  Fund";  also  "to 
place  Andrew  C.  Scott  upon  the  pension  roll  of  the  fire 
department";  also  to  issue  and  sell  its  bonds  in  certain 
amounts  within  the  following  four  years  for  funds  to  be 
used  in  constructing  and  furnishing  normal  and  other  new 
school  buildings;  also  to  bear  the  whole  expense  of  the 
construction  and  maintenance  of  sewers  in  the  city  de- 
signed for  the  disposal  of  surface  drainage;  also  to  assess 
private  property  for  special  benefits  resulting  to  it  from 
public  improvements  completed  within  six  years;  also  to 

146 


MUNICIPAL   SELF-GOVERNMENT 

"make  regulations  relative  to  the  exercise  of  the  trade  of 
bootblacking  by  minors";  also  to  construct  "a  system  of 
tunnels  and  subways  so  designed  as  to  be  adapted  for  the 
accommodation"  of  both  elevated  and  surface  cars  under 
certain  "public  streets,  squares,  or  places";  also,  by  fifteen 
distinct  acts,  the  city  is  authorized  to  pay  various  sums  of 
money  to  the  widows  or  other  relatives  of  as  many  de- 
ceased employees  and  officials. 

The  general  court,  at  the  same  session,  directly  pro- 
vided that  "The  officers  in  attendance  at  the  municipal 
court  of  the  city  of  Boston  for  the  transaction  of  criminal 
business  shall,  while  on  duty  in  said  court,  wear  uniforms 
to  be  designated  by  the  justices  of  said  court,  and  for  such 
uniforms  shall  be  allowed  and  paid  by  the  county  of 
Suffolk  the  sum  of  one  hundred  dollars  each  annually  in 
addition  to  their  salaries  as  such  officers."  It  also  by  direct 
provisions  of  law  discontinued  a  part  of  B  street  in  Bos- 
ton; and  authorized  the  metropolitan  water  and  sewerage 
boards  to  provide  means  for  measuring  the  water  supplied 
to  each  of  the  cities  and  towns  in  the  district,  and  directed 
said  board  to  report  to  the  next  general  court  the  quantity 
of  water  supplied  to  each  of  said  cities  and  towns  and 
whether  water  is  being  used  therein  unnecessarily  or  im- 
properly. 

The  general  court,  at  its  session  of  1903,  graciously 
authorized  the  school  committee  of  the  city  of  Boston  to 
make  additional  appropriations  of  funds  of  the  people  of 
the  city  for  the  support  of  their  public  schools;  also 
directed  the  treasurer  of  Boston  to  issue  its  bonds  to  obtain 
funds  for  the  construction  of  a  tunnel  or  tunnels  to  East 

147 


ESSAYS  AND  ADDRESSES 

Boston ;  also  authorized  the  construction  of  sewerage  work 
in  Boston  by  its  superintendent  of  streets,  or  by  such  other 
officer  as  the  mayor  shall  designate;  also  authorized  the 
city  of  Boston  to  sell  to  the  town  of  Brookline  the  Old  Bos- 
ton Reservoir  property  on  Boylston  street;  also  extended 
the  pension  system  of  the  police  department  of  the  city 
of  Boston;  also  authorized  a  bridge  across  Chelsea  street; 
also  authorized  the  city  of  Boston  to  improve  various 
specified  streets  and  to  provide  the  means  therefor;  also 
to  acquire  certain  flats  and  lands  covered  by  tide  water  in 
]])orchester,  for  sanitary  purposes;  also  provided  for  the 
election  of  thirteen  aldermen  on  a  general  ticket  in  a  way 
apparently  intended  to  insure  the  control  of  the  board  by 
political  bosses,  if  you  have  them;  also  directing  the  har- 
bor and  land  commissioners  to  dredge  the  channel  off  the 
easterly  shore  of  Dorchester  "to  a  depth  not  exceeding 
twelve  feet  at  mean  low  water";  also  authorized  the  city, 
by  eighteen  distinct  acts,  to  pay  sums  of  money  to  the 
widows  or  other  relatives  of  deceased  employees  and 
officials. 

Such  are  some  of  the  measures  of  the  last  two  years 
which  illustrate  the  deep  concern  of  the  people  of  Massa- 
chusetts for  your  welfare.  It  must  be  nice  to  feel  that 
whatever  happens  the  people  of  this  great  commonwealth 
have  you  in  their  keeping;  that  they  will  restrain  you  from 
making  an  excessive  outlay  of  your  own  money  on  the 
education  of  your  children ;  that  not  even  a  back  street  of 
your  city  may  be  improved  at  your  own  expense  without 
their  anxious  care ;  that  they  are  keeping  careful  watch  to 
see  that  you  make  no  improper  or  unnecessary  use  of  the 

148 


MUNICIPAL  SELF-GOVERNMENT 

water  for  which  you  pay;  that  they  will  see  that  work  on 
your  sewers  is  performed  by  the  proper  officers ;  that  they 
will  come  to  the  relief  of  your  political  bosses  when  their 
power  is  endangered;  that  twenty  times  a  year  they  will 
rush  in  to  restrain  you  from  impoverishing  yourselves 
through  sympathy  for  the  widows  and  orphans  of  deceased 
pohcemen  and  firemen;  that  they  will  advise  you  of  the 
exact  psychological  moment  in  which  you  may  build  a 
bridge  over  Chelsea  creek;  and  that  they  will  not  permit 
you  to  seal  the  bottom  of  the  channel  off  Dorchester. 

Seriously,  my  friends,  the  Acts  and  Resolves,  a  few  of 
which  I  have  summarized,  illustrate  what  is  still  done  as  a 
matter  of  course  by  all  our  States,  differing  only  in  degree. 
Such  measures  rightly  conceived  reflect  on  the  sanity,  to 
say  nothing  of  the  capacity  for  self-government,  of  the 
inhabitants  of  American  cities.  People  fit  to  govern 
themselves  will  not  long  tolerate  this  monstrous  usurpa- 
tion of  their  rightful  authority. 

The  people  of  Boston  by  the  best  of  warrants  possess 
the  right  to  participate  in  the  government  of  their  country. 
Yet  they  are  not  permitted  to  tax  themselves  for  the  public 
education  of  their  children  or  for  the  improvement  of  their 
streets  without  the  gracious  permission  of  the  member 
from  Cranberry  Centre. 

The  time  will  come  when  the  people  of  Boston  will 
dare  to  govern  themselves.  They  will  claim  and  acquire 
their  right  of  municipal  self-government.  The  soil  on 
which  Boston  stands  was  early  dedicated  to  freedom. 
Within  the  limits  of  your  city  some  of  the  greatest  vic- 
tories of  hberty  have  been  won.    Where  so  much  has  been 

149 


ESSAYS  AND  ADDRESSES 

achieved,  surely  what  remains  to  achieve  will  be  under- 
taken. The  very  stones  in  your  streets  protest  against 
government  from  without. 

The  country  is  wont  to  look  to  Massachusetts  for  lead- 
ership in  every  movement  for  reform.  We  expect  Boston 
to  assume  its  rightful  place  in  the  effort  now  gathering  to 
make  municipal  government  throughout  the  United  States 
democratic.  Until  this  be  fairly  tried,  no  one  may  say  that 
democracy  has  failed  in  the  government  of  cities. 


150 


THE  NATION 


AMERICAN  SOVEREIGNTY* 

rilHE  Union,  its  preservation  and  perfection,  has  been 
the  leading  issue  in  American  politics.  It  has  made 
the  greatest  demands  upon  statesmanship  and  sounded  the 
loudest  calls  to  arms.  On  its  account  the  contests  of  a 
century  have  been  fought;  in  its  name  the  victories  of  a 
century  have  been  won.  The  Articles  of  Confederation 
declared  the  Union  perpetual;  the  Constitution  was 
framed  to  make  it  more  perfect ;  the  war  for  the  Union  was 
fought  to  make,  in  the  phrase  of  Chief  Justice  Chase,  an 
"indissoluble  Union  of  indestructible  States." 

If  we  seek  the  real  cause  of  the  great  controversy  that 
lies  between  the  perpetual  Union  of  the  Articles  of  Con- 
federation and  the  indissoluble  Union  of  1865,  we  shall 
find  it  in  the  widely  differing  opinions  that  have  obtained 
as  to  the  location  of  American  sovereignty.  While  im- 
portant phases  of  this  controversy  have  been  settled,  the 
question  of  final  authority,  the  actual  basis  of  all  Ameri- 
can law,  still  remains  a  fruitful  source  of  misunderstand- 
ing of  our  institutions  both  at  home  and  abroad. 

Among  the  definite  views  that  have  prevailed  as  to  the 
location  of  American  sovereignty,  two  have  been  of  special 
influence.  It  has  been  earnestly  contended  on  the  one  hand 
that  sovereignty  is  held  by  the  States,  and  on  the  other 
that  it  is  held  by  the  aggregate  people  of  the  United 

*  Reprinted    from    "The    Northwestern    Law     Review,"   Chicago, 
October,  1895. 

153 


ESSAYS  AND  ADDRESSES 

States,  or  by  the  aggregate  people  of  the  several  States 
in  union.  On  one  side  it  has  been  claimed  that  the  col- 
onies by  the  Revolution  became  severally  free,  sovereign 
and  independent  States;  that  these  States  could  not  sur- 
render nor  transfer  their  sovereignty,  and  that  the  Con- 
stitution was  but  a  mere  compact  between  sovereign  States. 
On  the  other  side  it  has  been  held  that  the  colonies  were 
never  independent,  sovereign  States;  that  as  one  people 
subject  to  Great  Britain  they  achieved  their  independence 
and  became  a  sovereign  people,  and  as  such  established  the 
Constitution.  Thus  the  question  whether  the  United 
States  constitute  a  single  sovereign  State,  or  a  Confeder- 
acy of  Sovereign  States,  is  made,  by  the  supporters  of 
these  views,  to  depend  upon  the  historical  inquiry  whether 
the  American  people  achieved  their  independence  as  one 
people  or  as  several  independent  peoples.  Hence  more 
attention  has  been  given  to  the  history  of  a  century  ago, 
from  which  some  support  is  easily  found  for  either  view, 
than  to  the  actual  facts  and  conditions  of  the  more  perfect 
Union  of  the  Constitution.  In  this  connection  undue 
attention  has  likewise  been  given  to  the  intent  of  the  fram- 
ers  of  the  Constitution.  Some  of  these  intended  one  thing 
and  some  another.  Their  intent  is  only  of  value  as  it 
accords  with  what  they  in  fact  did. 

The  actual  location  of  American  sovereignty  is  a  fact 
of  to-day,  not  a  question  of  history,  nor  a  creature  of  in- 
tention. What  the  framers  of  the  Constitution  did  is  of 
vastly  greater  consequence  than  the  antecedent  location  of 
American  sovereignty,  or  their  intention  as  to  its  location. 

The  supporters  of  both  these  positions,  although  they 

154 


AMERICAN   SOVEREIGNTY 

differ  widely  as  to  its  location,  agree  that  sovereignty  is 
indivisible,  and  that  it  must  exist  somewhere  in  unity  in 
every  independent  political  community.  One  or  the  other 
of  these  views  has  been  held  by  most  of  those  who  have 
intelligently  sought  to  locate  the  final  authority  in  our 
complex  system.  But  there  have  always  been  those  who 
have  held  that  sovereignty  is  divided  between  the  States 
and  the  United  States.  These  have  not  understood  the 
nature  of  sovereignty,  or  have  mistaken  its  agents  for  their 
principal.  They  have  freely  used  the  word  "sovereign," 
with  apparent  indifference  as  to  its  meaning,  and  have 
filled  our  judicial  and  political  literature  with  an  absurd 
jargon  about  divided  sovereignty,  and  the  Federal  and 
State  governments  being  each  sovereign  within  its  sphere. 
A  divided  sovereignty  is  a  flat  contradiction  of  terms,  and 
can  no  more  exist  than  a  divided  man  can  live. 

In  John  Austin's  celebrated  analysis  of  law,  the  first 
step  is  the  proposition  that  a  law  is  a  command  issued  by 
a  superior  to  a  subject  and  enforced  by  a  sanction  or  pen- 
alty. Positive  law  is  distinguished  from  other  laws, 
properly  so-called,  as  the  command  of  the  sovereign  of  an 
independent  political  community.  A  sovereign  is  a  per- 
son, or  a  determinate  body  of  persons,  to  whom  the  bulk 
of  the  community  is  habitually  obedient;  such  person,  or 
determinate  body  of  persons,  not  being  in  the  habit  of 
obedience  to  any  determinate  himian  superior.  This  defi- 
nition is  at  once  so  clear  and  scientific  that  it  has  been 
accepted  as  adequate  by  many  if  not  most  of  those  who 
have  since  had  occasion  to  consider  the  meaning  of  the 
term.     A  sovereign  cannot  be  limited  in  the  exercise  of 

155 


ESSAYS  AND  ADDRESSES 

sovereign  powers,  nor  can  such  powers  be  shared  between 
it  and  another.  Such  limitation  or  division  would  imply 
a  superior  with  authority  to  impose  such  limitations  or 
divide  such  powers.  Hence  as  Austin  remarks,  "Sover- 
eignty, or  supreme  power,  is  incapable  of  legal  limitation, 
whether  it  reside  in  an  individual  or  in  a  number  of  indi- 
viduals." It  follows  that  there  can  be  but  one  sovereign, 
or  sovereign  body,  in  an  independent  political  societj'  at 
one  and  the  same  time,  and  that  such  sovereign,  or 
sovereign  body,  can  be  subject  to  no  human  superior. 
Sovereignty  is  always  held  in  unity  by  one  person,  or  a 
determinate  body  of  persons.  Its  powers  may  be  dis- 
tributed in  exercise,  but  must  remain  one  in  possession. 
It  may  create  or  adopt  agencies  through  which  to  exercise 
its  powers,  but  it  must  remain  free  from  the  fetters  of 
positive  law.  With  this  meaning  of  the  term  in  view  we 
may  seek  the  location  of  American  sovereignty. 

The  power  that  created  and  adopted  our  various  agen- 
cies of  government;  that  delegated  and  "reserved"  to 
them  the  sovereign  powers  which  they  wield;  that  defined 
those  powers  and  restricted  their  exercise  by  a  written 
Constitution;  that  from  time  to  time  has  added  further 
expressions  of  its  will,  and  that  may  at  its  pleasure  resume 
the  powers  thus  placed  in  the  hands  of  its  agents  and  re- 
distribute them,  is  sovereign  in  this  country.  This  sover- 
eign employs  agents  through  which  to  exercise  many  of 
its  powers.  Of  these  one  of  the  most  important  is  the  local 
State,  which  is  not  itself  sovereign.  All  its  powers  were 
"reserved"  or  delegated  to  it  by  a  power  outside  of  and 
greater  than  itself,  by  whose  authority  alone  it  acts.     It 

156 


AMERICAN   SOVEREIGNTY 

is  not  even  a  mere  agency  of  its  aggregate  people,  or  of 
the  aggregate  of  those  who  hold  the  franchise.  In  fact 
such  aggregate  body  in  the  local  State  is  not  sovereign, 
but  is  itself  another  agency  of  a  superior.  There  is  no 
power  granted  or  "reserved"  to  the  local  State  or  its 
aggregate  people  that  may  not  be  withdrawn  or  limited, 
not  only  without  its  consent,  but  against  its  will.  Even 
if  we  assume  that  the  Constitution  can  only  be  amended 
in  the  manner  therein  provided,  a  given  State  exercises 
no  power  of  which  it  may  not  be  deprived  by  the  action 
of  three-fourths  of  the  other  States  against  its  own  will 
and  the  wishes  of  all  the  citizens.  A  State  which  exercises 
no  power  of  which  it  may  not  thus  be  deprived,  is  in  no 
proper  sense  sovereign  or  independent.  The  powers  which 
it  exercises  may  be  sovereign,  but  they  belong  to  a  superior 
in  relation  to  which  it  is  dependent. 

But  if  the  location  of  American  sovereignty  is  not  to 
be  found  in  the  local  State,  nor  in  its  aggregate  people, 
neither  is  it  to  be  found  in  the  Federal  government,  which 
is  itself  an  agency  of  hmited  though  important  powers. 
The  Federal  government  did  not  make  the  Constitution, 
but  is  itself  the  creature  of  the  Constitution.  It  can 
neither  add  to  nor  change  its  powers.  As  to  important 
matters,  such  as  the  protection  of  life,  liberty,  and  prop- 
erty, it  cannot  even  exercise  powers  of  sovereignty.  The 
fact  that  it  is  a  government  of  limited  powers  is  conclusive 
of  any  claim  of  sovereignty  on  its  behalf.  Sovereignty 
cannot  be  divided,  and  have  its  powers  limited  by  written 
constitutions  or  otherwise.  Its  powers  cannot  be  divided 
in   possession,   but   may   be    distributed    among   agents 

157 


ESSAYS  AND  ADDRESSES 

through  which  they  are  exercised.  But  such  agents  are 
in  no  sense  sovereign.  The  Federal  government  is  with- 
out authority  to  say  how  many  or  how  few  shall  be  its 
powers,  or  what  shall  be  delegated  or  reserved  to  the 
States.  It  is  a  child  of  the  Constitution,  a  mere  agency 
of  the  sovereign.  Over  and  above  the  local  State,  its  ag- 
gregate people,  the  Federal  government,  and  the  Constitu- 
tion, stands  a  sovereign  power  higher  than  any  of  them, 
superior  to  all  of  them.  This  power  holds  American  sov- 
ereignty in  unity,  having  distributed  its  powers  among  its 
agents  through  which  it  exercises  them.  No  one  of  these 
agents  has  any  final  control,  even  as  to  what  shall  be  its 
own  powers ;  and  even  when  some  of  them  act  together  in 
amending  the  Constitution,  they  thus  act  in  obedience  to, 
and  under  the  authority  of,  the  sovereign  that  stands 
over  and  above  the  Constitution  itself. 

The  powers  of  sovereignty  being  distributed  in  this 
country  among  many  agents,  there  must  be  some  body 
politic,  or  aggregate  people,  able  at  all  times  to  recall  and 
redistribute  them.  Such  body  or  people  is  alone  sovereign. 
It  is  above  the  Constitution  and  all  its  complex  agencies. 
The  only  body  that  meets  these  requirements  is  the  aggre- 
gate people,  composed  of  all  who  hold  the  franchise  in 
the  several  States.  This  aggregate  is  one  body  politic.  As 
such  it  is  subject  to  no  human  superior,  although  its  indi- 
vidual members  constitute  a  large  part  of  its  subjects,  and 
as  individuals,  are  habitually  subject  to  its  will.  It  is  not, 
as  a  body  politic,  bound  by  the  Constitution,  but  is  itself 
the  power  whose  command  alone  gives  the  Constitution 
authority.     The  members  of  this  body  are  often  loosely 

158 


AMERICAN  SOVEREIGNTY 

called  sovereigns,  and  it  is  sometimes  said  that  every 
American  citizen  is  a  king.  This  is  error.  Only  the  ag- 
gregate body  is  sovereign,  while  its  members  as  individu- 
als are  subjects  who  are  alike  bound  to  obedience  with 
those  who  do  not  hold  the  franchise. 

It  is,  however,  objected  that  there  is  no  such  aggregate 
ruling  class  which,  holding  sovereignty  in  unity,  stands 
above  all  our  constitutions,  laws,  and  governmental  agen- 
cies. Professor  Bliss,  in  his  work  on  sovereignty,  goes  so 
far  as  to  say  that,  "The  distribution  of  powers  between 
the  Federal  and  State  governments  is  permanent."  He 
claims  that  the  Constitution  cannot  be  changed  by  the 
Federal  state,  the  Federal  people,  the  local  States  or  their 
several  or  aggregate  peoples;  that  it  requires  the  consent 
of  both  the  local  and  Federal  States,  and  that  the  pow- 
ers of  sovereignty  are  not  distributed  but  permanently 
divided.  He  says  that  such  powers  may  be  said  to  be 
distributed  without  division  when  there  still  exists  a  State 
or  people  which  may  recall,  continue,  or  redistribute  them 
at  will.  He  admits  that  if  sovereignty  remains  it  must 
be  held  in  unity,  but  asserts  that  it  has  been  destroyed  by 
the  division  of  its  powers  among  our  various  agencies  of 
government.  Mr.  Bliss  argues  that  the  aggregate  people 
acting  as  one  body  politic  are  not  sovereign,  because  they 
cannot  make  constitutional  changes  or  control  the  distri- 
bution of  powers.  In  other  words,  the  power  that  made 
the  Constitution,  in  making  it  gave  up  its  own  hfe.  The 
sovereign  has  in  making  the  Constitution  committed  sui- 
cide. The  future  welfare  and  government  of  the  Nation 
is  remitted  to  the  care  of  irresponsible  agents  whose  master 

159 


ESSAYS  AND  ADDRESSES 

has  gone  to  a  far  country  never  to  return.  The  main  error 
in  this  reasoning  lies  in  the  assumption  that  the  sovereign 
is  absolutely  bound  by  the  Constitution,  and  that  it  can 
only  be  amended  in  the  manner  therein  provided. 

The  maxim,  "The  king  can  do  no  wrong,"  is  easily 
understood  as  applied  to  an  absolute  monarch.  It  simply 
means  that  such  a  sovereign  can  do  no  legal  wrong.  All 
law  represents  his  will,  and  he  cannot  be  bound  by  his  own 
will.  Any  act  contrary  to  a  former  expression  of  his  will 
must  be  regarded  merely  as  indicating  a  further  ex- 
pression of  the  will  of  the  supreme  authority.  The 
same  reasoning  applies  when  sovereignty  is  held  by 
an  aggregate  body  instead  of  a  single  individual.  The 
sovereign  body  can  do  no  legal  wrong.  It  is  not  itself 
bound  by  the  laws  it  sets  for  its  agents  and  subjects. 
Hence  provisions  contained  in  the  Constitution  for  its 
amendment  cannot  be  regarded  as  binding  upon  the  aggre- 
gate body  in  which  resides  American  sovereignty.  Such 
provisions  are  binding  upon  the  agents  through  which 
amendments  may  be  made.  Such  agents  have  no  author- 
ity to  amend  except  as  directed.  The  sovereign  body 
itself,  being  above  the  Constitution,  may  amend  it  in  any 
manner  it  chooses.  Its  power  and  right  to  amend,  when- 
ever and  in  whatever  manner  it  may  desire,  is  in  no  way 
affected  by  the  fact  that  it  is  highly  impracticable  for  it 
to  amend  except  through  the  agencies  and  in  the  manner 
provided  in  the  Constitution  itself.  In  fact  the  provisions 
for  amendment  are  to  be  regarded,  not  as  law  binding  the 
sovereign,  but  as  an  expression  of  its  purpose  to  amend 
only  in  that  manner;  as  notice  to  its  subjects,  public  offi- 

160 


AMERICAN   SOVEREIGNTY 

cers  and  other  agents,  that  they  are  not  to  regard  any- 
thing purporting  to  be  a  further  expression  of  its  will  as 
such  unless  expressed  in  the  mode  stated.  If,  however,  the 
sovereign  should  amend  by  a  clear  and  unmistakable  ex- 
pression of  its  will  in  any  other  manner,  the  duty  of  obed- 
ience would  at  once  rest  upon  all  its  agents  and  subjects. 
While  the  Constitution  remains  without  further  amend- 
ment, it  is  to  be  regarded  as  still  expressing  the  sover- 
eign's will,  and  when  amendments  are  made  through  the 
regularly  constituted  agencies  they  must  be  assumed  to  be 
a  further  expression  of  that  will. 

It  is  also  objected  that  the  aggregate  people  of  the 
several  States  do  not  in  fact  act  together  as  a  single  body 
pohtic.  It  is  true  that  in  establishing  the  Constitution 
they  did  not  gather  in  one  place  and  take  united  action.  It 
is  also  true  that  they  have  not  since  met  and  formally 
resolved  that  the  Constitution  and  the  various  agencies 
of  government  still  represent  the  will  of  the  entire  body. 
It  is  likewise  true  that  in  all  their  action  respect  has  been 
paid  to  the  local  States.  But  the  Constitution  was  not 
made  by  the  States  or  for  the  States.  It  was  "We  the  peo- 
ple of  the  United  States,"  not  the  several  States  or  the 
peoples  of  the  several  States,  who  ordained  and  established 
the  Constitution.  Local  independence  had  never  been 
known.  The  Colonies  though  locally  isolated  were  sub- 
ject to  a  common  authority,  and  independence  was 
achieved  by  the  joint  action  of  all  imder  a  conmion  govern- 
ment. The  Constitution  was  established  for  the  better 
protection  of  the  one  people  of  the  United  States. 

Many  who  have  never  accepted  the  doctrine  of  the  Cal- 

161 


ESSAYS  AND  ADDRESSES 

hoiin  school  as  to  the  rights  of  the  States  have  fallen  into 
the  error  that  the  States  are  sovereign  within  their  sphere. 
It  still  seems  to  be  held  by  these  that  the  States  as  inde- 
pendent pohtical  communities  estabhshed  the  Constitution, 
reserving  to  themselves  sovereignty  each  over  its  own  terri- 
tory, except  as  limited  by  that  instrument.  The  States 
were  retained  as  important  agencies  of  government  by  the 
Constitution,  but  the  fact  that  their  powers  are  general, 
except  as  limited,  does  not  indicate  that  they  are  anything 
but  agents.  They  did  not  reserve  to  themselves  the  powers 
not  delegated  to  the  United  States  by  the  Constitution, 
nor  prohibited  by  it  to  the  States.  The  reservation  of  the 
Tenth  Amendment  is  to  them,  or  to  the  people,  by  the 
power  that  made  the  Constitution,  and  continued  them  as 
its  agents.  The  States  exercise  sovereign  powers,  but  such 
powers  are  delegated  to,  or  reserved  for  them. 

In  making  their  own  constitutions  and  local  laws  the 
aggregate  people  of  a  State,  composed  of  those  who  hold 
the  franchise,  resemble  in  some  things  the  aggregate  peo- 
ple of  the  United  States.  Such  body  is  not  legally  bound 
by  the  State  constitution  and  laws.  It  may  amend  its 
constitution  in  any  manner  it  chooses,  without  reference  to 
the  mode  prescribed  in  the  instrument  itself.  The  vital 
distinction  between  the  aggregate  people  of  the  United 
States  and  the  aggregate  people  of  the  local  State  Hes  in 
the  fact  that  the  former  owes  obedience  to  no  himian  su- 
perior, while  the  latter  is  bound  by  the  Constitution  of  the 
United  States.  The  aggregate  people  of  the  United 
States  is  sovereign ;  the  aggregate  people  of  the  local  State 
is  merely  an  agent  exercising  great  but  delegated  powers. 

162 


AMERICAN  SOVEREIGNTY 

The  individuals  who  compose  both  aggregates  owe  obe- 
dience to  the  laws  imposed  by  both,  and,  as  we  have  seen, 
are  as  individuals  in  no  sense  sovereign. 

It  is  claimed  by  some  writers  of  high  standing  that 
sovereignty  is  impersonal.  Guizot  discards  the  idea  that 
sovereignty,  which  he  describes  as  the  primitive,  absolute 
right  of  law  making,  can  exist  in  any  person  or  in  the  State 
itself.  He  asserts  that  reason,  justice,  the  divine  law 
within  should  dictate  human  laws.  Francis  Lieber  re- 
gards sovereignty  as  a  power  inherent  in  society,  in  the 
State  itself.  Others  unite  in  these  views,  holding  that 
sovereignty  is  impersonal,  inherent  in  society,  but  not  held 
by  those  having  the  franchise  or  otherwise. 

It  seems  that  in  this  view  the  aggregate  of  those  hold- 
ing the  franchise  is  to  be  regarded  as  still  another  and 
higher  agent  of  the  sovereign  authority.  The  objection  to 
this  theory  lies  in  its  removal  of  sovereignty  beyond  the 
range  of  definite  legal  initiative.  Where  positive  law  ex- 
ists there  must  be  some  definite  final  authority  by  which 
it  is  imposed  and  enforced.  Hence  the  sovereign  person, 
or  determinate  body  of  persons,  of  Austin's  definition. 
But  those  who  hold  that  sovereignty  is  impersonal,  deny 
that  law  is  a  command.  Thus  Mr.  James  C.  Carter,  in 
his  address  at  the  meeting  of  the  American  Bar  Associa- 
tion of  1890,  on  "The  Ideal  and  the  Actual  in  Law," 
says:  "The  law  is  not  a  body  of  commands  imposed  upon 
society  from  without,  either  by  an  individual  sovereign  or 
superior,  or  by  a  sovereign  body  constituted  by  representa- 
tives of  society  itself.  It  exists  at  all  times  as  one  of  the 
elements  of  society  springing  directly  from  habit  and  cus- 

163 


ESSAYS   AND  ADDRESSES 

torn.  It  is  therefore  the  unconscious  creation  of  society,  or 
in  other  words,  a  growth.  .  .  .  The  statute  law  is  the 
fruit  of  the  conscious  exercise  of  the  power  of  society, 
while  the  unwritten  and  customary  law  is  the  product  of 
its  unconscious  effort." 

Mr.  Carter  also  says  that  law  springs  from  and  rests 
upon  "the  habits,  customs,  and  thoughts  of  a  people,  and 
that  from  these  a  standard  of  justice  is  derived  by  which 
doubtful  cases  are  determined.  The  office  of  the  judge  is 
not  to  make  it,  but  to  find  it,  and  when  it  is  found,  to 
affix  to  it  his  official  mark  by  which  it  becomes  more  cer- 
tainly known  and  authenticated.  The  office  of  the 
legislator  ...  is  somewhat,  but  not  fundamentally, 
different." 

Others  who  share  these  views,  in  substance,  also  insist 
that  the  sovereign  person,  or  determinate  body,  of  Aus- 
tin's definition,  is  further  limited  by  public  opinion.  In 
general,  they  insist  that  what  has  been  regarded  as  sover- 
eignty is  itself  controlled  by  limitations  imposed  by  the 
habits,  customs,  passions,  and  public  opinion  of  all  the 
people,  and  by  reason,  justice,  and  divine  law.  That  all 
these  have  great  influence  upon  the  action  of  the  person, 
or  determinate  body,  that  holds  sovereignty  in  unity  in 
any  given  society,  may  be  at  once  admitted.  It  is  not 
claimed  that  this  sovereign  person,  or  body,  is  at  all  free 
from  limitations  other  than  those  imposed  by  positive  law. 
No  one  of  the  influences  named  is  legal.  Nothing  that 
any  one  of  them  dictates  can  be  enforced  by  legal  sanc- 
tions if  the  sovereign  person,  or  body,  chooses  to  disregard 
it.    No  rule  of  action  supported  by  any  of  them  can  be- 

164 


AMERICAN   SOVEREIGNTY 

come  a  rule  of  positive  law  until  it  has  taken  the  form  of 
a  command,  directly  or  indirectly.  Where  the  sovereign 
is  a  single  person,  individual  opinion  or  caprice  is  likely 
more  or  less  to  influence  his  action.  But  where  the  sover- 
eign is  a  body  composed  of  numerous  members  of  the 
society,  as  in  this  country,  the  habits,  customs,  and  public 
opinion  of  the  entire  people  will  generally  exert  great  in- 
fluence upon  its  action.  It  may  even  be  admitted  that  its 
action  should  as  a  rule  be  determined  by  these  influences. 
As  long  as  it  retains  the  right  of  choice  and  is  not  subject 
to  the  legal  control  of  a  superior,  it  matters  not  whence 
come  the  individual  opinions  of  members  which  find  ex- 
pression in  their  joint  action.  Such  opinions  must  be 
formed  by  some  influences,  and  it  is  natural  and  proper 
that  the  habits,  customs,  and  public  opinion  prevalent  in 
the  society  of  which  they  are  the  leading  members  should 
have  great  or  even  decisive  weight  in  their  formation.  The 
distinction  is,  that  such  influences  are  not  legal,  and  do  not 
become  part  of  the  law  of  the  land  until  they  have  assumed, 
directly  or  indirectly,  the  form  of  a  command  of  the  sover- 
eign body.  The  making  of  the  habits,  customs,  and  public 
opinion  of  the  people  into  law  proceeds  so  silently  and  con- 
stantly that  it  may  often  seem  difficult  to  mark  this  dis- 
tinction, but  it  must  always  exist,  or  the  courts  would  be 
obliged  to  enforce  the  entire  body  of  habits,  customs  and 
public  opinion  of  the  people.  Even  if  they  did  this,  it 
would  be  in  obedience  to  a  command  to  do  so,  which  would 
be  of  itself  a  command  making  all  such  habits,  customs, 
and  pubhc  opinion  the  law  of  the  land.  The  courts  them- 
selves are  mere  agents  of  the  sovereign  body ;  and  as  said  by 

165 


ESSAYS  AND  ADDRESSES 

Hamilton,  they  "have  neither  force  nor  will,  but  only 
judgment." 

Mr.  Carter  alleges  that  it  is  the  office  of  the  judge  not 
to  make,  but  to  find,  the  law  and  affix  to  it  his  official 
mark  by  which  it  becomes  more  certainly  known  and  au- 
thenticated. It  would  be  more  accurate  to  say  that  the 
sovereign  person,  or  body,  creates  the  judicial  office  and 
appoints  judges  to  find  out  and  declare,  in  deciding  new 
and  uncertain  cases,  what  shall  be  the  law.  Law  thus 
made  is  as  much  the  command  of  the  sovereign  as  is  that 
made  by  legislation.  Both  are  declared  by  its  agents.  The 
law  which  both  declare  becomes  such  only  by  virtue  of  the 
authority  of  a  determinate  sovereign. 

The  long  controversy  touching  the  location  of  Ameri- 
can sovereignty  has  raised  questions  both  difficult  and 
dangerous.  The  danger  is  past,  but  it  still  remains  im- 
portant that  we  clearly  understand  where  lies  the  final  au- 
thority for  all  American  positive  law. 


166 


AT  THE  PARTING  OF  THE  WAYS :    A  STUDY 
IN   INTERNATIONAL   POLICY* 

rpHE  administration  of  Washington,  both  by  example 
and  precept,  committed  the  United  States  to  a  for- 
eign policy  which  served  us  well  for  a  century.  This 
policy  is  best  expressed  in  the  memorable  language  of  the 
Farewell  Address: 

Observe  good  faith  and  justice  toward  all  nations. 
Cultivate  peace  and  harmony  with  all.  .  .  .  '  T  is  our 
true  policy  to  steer  clear  of  permanent  alliances  with  any 
portion  of  the  foreign  world.  .  .  .  Harmony,  liberal 
intercourse  Math  all  nations  are  recommended  by  policy, 
humanity,  and  interest. 

Again : 

The  great  rule  of  conduct  for  us,  in  regard  to  foreign 
nations,  is,  in  extending  our  commercial  relations,  to  have 
with  them  as  little  political  connection  as  possible. 

Perhaps  our  "detached  and  distant  situation"  and  the 
demands  made  upon  us  by  the  rapid  settlement  of  a  con- 
tinent, rather  than  our  sense  of  justice,  led  us  so  long  to 
follow  in  the  main  the  example  and  counsel  of  Washing- 
ton. However  this  may  be,  the  pursuit  of  this  policy  has 
not  isolated  us  from  the  great  world,  nor  interfered  with 
our  just  influence  in  its  affairs.  On  the  contrary,  because 
of  our  situation  and  disinterestedness,  we  have  had  a  lead- 
ing part  in  the  development  of  international  law  and  the 
larger  influences  that  make  for  the  peace  and  progress  of 
the  world. 

*  Read  before  The  Chicago  Literary  Club,  January  20,  1896. 

167 


ESSAYS  AND  ADDRESSES 

The  Civil  War  finally  settled  the  vital  question  of 
union,  and  removed  the  remaining  obstacles  to  the  rapid 
development  of  the  forces  that  constitute  national  strength. 
It  also  tested  our  institutions  as  they  were  never  tested  be- 
fore, and  revealed  a  strength  in  our  national  government 
which  had  not  been  suspected.  The  close  of  civil  strife  left 
the  country  under  too  great  obligations  to  the  party  under 
whose  leadership  and  in  whose  name  the  splendid  victory 
for  national  unity  had  been  won,  to  permit  an  early  return 
to  normal  political  action.  Then,  too,  it  has  taken  time  to 
remove  the  debris  of  the  conflict  and  adjust  the  nation  to 
its  new  conditions.  In  the  interval,  a  new  generation, 
claiming  no  personal  share  in  the  achievements  of  the  past, 
has  arisen  to  find  its  opportunity  in  the  larger  national  life 
which  opens  before  us.  In  view  of  the  changes  thus 
wrought,  the  evidently  growing  desire  among  us  that  the 
United  States  shall  exercise  a  more  potent  influence  in  the 
affairs  of  the  world,  is  not  matter  of  surprise.  This  desire 
has  found  expression  within  the  last  few  years  in  a  series 
of  incidents  in  connection  with  our  relations  with  foreign 
powers,  which  seem  to  indicate  that  our  foreign  policy  is 
in  process  of  transformation.  We  may  well  question  any 
substantial  change  from  the  policy  which  has  so  long  served 
us,  upon  the  whole,  so  well.  A  study  of  these  incidents  and 
their  tendency,  therefore,  becomes  a  patriotic  duty. 

The  controversy  between  the  United  States  and  Great 
Britain  in  regard  to  sealing  in  Behring  Sea  is  still  fresh 
in  public  memory.  It  was  no  doubt  desirable  to  make 
some  provision  for  the  protection  of  the  seals,  but  the 
course  of  our  government  to  reach  this  result  was  most 

168 


AT  THE  PARTING  OF  THE  WAYS 

extraordinary.  We  began  by  claiming  jurisdiction  over  a 
great  arm  of  the  Pacific  Ocean  as  a  closed  sea.  We  had, 
with  England,  denied  this  right  of  sovereignty  when 
claimed  by  Russia,  but  based  our  claim  to  exercise  it  as 
derived  from  Russia.  This  claim  of  sovereignty  over  the 
high  seas  was  contrary  to  the  law  of  nations  as  finally 
established  largely  through  our  influence,  notably  in  our 
contentions  with  Great  Britain  in  respect  to  the  Canadian 
fisheries.  Yet,  in  the  face  of  the  law  and  our  own  record, 
we  captured  many  British  ships  and  warned  away  others, 
for  sealing  many  miles  from  land  in  Behring  Sea.  When 
our  claim  of  sovereignty  over  hundreds  of  miles  of  the  high 
seas  was  shown  to  be  untenable,  we  produced  the  novel 
claim  that  we  had  a  property  in  the  seals.  This  claim  we 
sought  to  sustain  by  a  ridiculous  analogy  based  on  the  an- 
nual resort  of  the  seals  to  the  Pribyloff  Islands  for  breed- 
ing purposes.  As  well  might  the  owner  of  a  marsh  claim 
property  wherever  found  in  the  wild  ducks  hatched  in  his 
bushes.  All  our  substantial  contentions  were  overruled  in 
the  arbitration,  one  of  our  arbitrators,  Mr.  Justice  Harlan 
of  the  Supreme  Court,  very  properly  voting  with  the  ma- 
jority to  sustain  the  law  against  his  own  government. 

The  Barrundia  incident  belongs  to  this  series.  Bar- 
rundia,  an  embezzler  and  former  minister  of  war  for  Gua- 
temala, took  refuge  in  Mexico,  and  was  ordered  out  of  the 
country  for  breach  of  neutrality.  He  took  passage  on  the 
Pacific  Mail  steamer  Acapulco  for  Salvador.  The  vessel 
touched  at  Guatemalan  ports,  arriving  at  San  Jose,  August 
27,  1890.  An  attempted  arrest  was  objected  to  by  the 
captain  of  the  steamer.     Then  our  minister,  Mr.  Mizner, 

169 


ESSAYS  AND  ADDRESSES 

secured  a  promise  from  the  authorities  of  a  fair  trial  and 
no  death  penalty.  Commander  Reiter  of  one  of  our  naval 
vessels  was  asked  by  the  captain  of  the  Acapulco  to  protect 
his  passenger.  This  request  was  declined  for  want  of 
authority  to  interfere  with  the  jurisdiction  of  the  local 
authorities.  Our  minister  took  the  same  position.  Bar- 
rundia  resisted  arrest,  firing  at  the  officers,  and  was  shot. 
Soon  after,  his  daughter  shot  at  Mr.  Mizner  in  the  legation, 
charging  him  with  her  father's  death.  Both  minister  and 
commander  acted  strictly  \^dthin  the  rules  of  international 
law.  The  commander  also  acted  in  accordance  with  the 
printed  instructions  of  the  navy  department  to  com- 
manders of  our  war  vessels,  governing  their  conduct  when 
in  foreign  waters.  Yet  the  minister  was  recalled,  and  the 
commander  reprimanded  and  removed  from  his  command 
for  not  protecting  the  passenger  of  a  merchant  vessel 
from  arrest  by  local  officers  in  the  waters  of  a  foreign 
nation.  The  secretary  of  the  navy^  even  reprimanded  the 
commander  for  not  seeking  out  the  passenger  and  offering 
him  asylum  on  his  ship,  though  such  action  would  have 
been  in  direct  violation  of  the  rules  of  international  law. 
The  history  of  our  relations  with  Chile  during  the 
grave  crisis  through  which  that  progressive  country  passed 
between  1889  and  1892,  is  important  in  this  connection. 
In  1889  we  sent  as  American  minister  to  Chile  Mr.  Patrick 
Egan,  a  foreign  adventurer  who  had  but  recently  arrived 
as  a  fugitive  from  his  own  country.  He  formed  a  close 
personal  alliance  with  Balmaceda  and  became  his  closest 
diplomatic  friend.  Afterwards  his  son  received  a  railroad 
contract  from  Balmaceda's  government.    Both  Egan  and 

170 


AT   THE  PARTING  OF  THE  WAYS 

the  American  consul  were  warm  supporters  of  the  dic- 
tator's cause  during  the  civil  war  between  him  and  the 
congressional  party.  The  consul,  at  least,  speculated 
heavily  in  foreign  exchange,  which  fluctuated  greatly  dur- 
ing the  war.  It  became  necessary  for  the  congressionaHsts 
to  secure  ammunition  and  arms.  For  this  purpose  they 
sent  the  Itata  to  San  Diego.  The  Chilean  minister  at 
Washington  applied  to  Secretary  Blaine  to  detain  the 
vessel.  The  secretary  by  letter  pointed  out  that  we  had 
no  authority  imder  the  rules  of  international  law  to  detain 
the  vessel  or  interfere  with  her  purpose.  Mr.  Blaine  then 
went  to  Bar  Harbor,  and  the  president  took  personal 
charge  of  the  matter.  A  deputy  United  States  marshal 
was  placed  on  board  the  ship  to  detain  her  on  suspicion. 
Thereupon  she  sailed,  putting  the  ofiicer  off  at  the  en- 
trance to  the  harbor.  A  pursuit  by  one  of  our  new  cruisers 
followed,  which  was  entirely  novel  to  international  law. 
No  nation  in  time  of  peace  has  jurisdiction  over  ships  of 
other  countries,  unless  suspected  of  piracy,  on  the  high 
seas.  No  capture  was  made,  but  the  congressionaHsts  sur- 
rendered the  Itata,  in  order  not  to  offend  the  United 
States,  and  the  vessel  was  brought  back  to  San  Diego, 
where  she  lay  several  months,  until  finally,  after  the  war 
was  over,  dismissed  by  our  own  admiralty  court,  on 
the  ground  that  her  detention  was  unlawful.  After  some 
delay  caused  by  this  incident  the  congressionaHsts,  who 
controlled  the  Chilean  navy,  obtained  arms  and  ammu- 
nition in  Europe,  and  on  August  20,  1891,  landed  a  force 
of  about  eight  thousand  men  at  Quinteros,  an  inlet  twenty 
miles  north  of  Valparaiso.    The  United  States  cruiser  San 

171 


ESSAYS  AND  ADDRESSES 

Francisco  sailed  up  the  coast  and  observed  the  landing, 
returning  at  five  o'clock  the  same  afternoon.  Our  consul 
immediately  went  on  board,  and  upon  his  landing  it  be- 
came publicly  known  how  many  troops  had  been  landed  at 
Quinteros.  Balmaceda's  organ  the  next  morning,  the  day 
of  the  decisive  battle,  under  the  heading,  "A  Battle  at 
Hand,"  announced  the  situation,  commencing  in  these 
words : 

From  trustworthy  news  brought  by  the  United  States 
warship  San  Francisco  yesterday,  we  know  for  a  certainty 
that  the  revolutionists  have  disembarked,  from  their  twelve 
transports  and  six  war  vessels,  about  eight  thousand  men 
in  the  vicinity  of  Coneon  and  Quinteros. 

The  triumphant  congressionalists  found  among  Balma- 
ceda's effects,  after  their  victory,  and  published,  a  telegram 
from  one  of  his  officials  to  the  dictator,  dated  at  9 :36  a.  m. 
of  the  day  of  the  battle  as  follows : 

Mr.  President:  The  American  admiral  has  left  me 
only  this  moment,  and  he  believes,  as  I  do,  that  a  reem- 
barkation  is  not  possible. 

These  publications  led  to  the  belief  among  Chileans 
that  Admiral  Brown  had  grossly  violated  neutrality  to  act 
as  a  spy  for  Balmaceda  at  a  critical  moment  in  the  contest. 
This,  following  the  Itata  incident,  and  the  subsequent 
exasperating  course  of  our  minister  in  granting  excessive 
asylum  to  the  vanquished  in  the  American  legation, 
aroused  the  most  intense  popular  feeling  against  the 
United  States  and  our  representatives. 

Under  these  circumstances,  and  about  three  weeks  after 
the  battle,  Commander  Schley  of  the  United  States  ship 

172 


AT  THE  PARTING  OF  THE  WAYS 

Baltimore,  against  the  advice  of  our  consul,  gave  one  hun- 
dred and  seventeen  sailors  shore  leave.  #They  went  into 
the  worst  portion  of  the  city  of  Valparaiso,  visited  the 
saloons,  and  finally  two  were  killed  and  others  injured  by 
a  mob.  The  Chilean  government  promptly  arrested  some 
of  the  mob,  and  began  a  legal  inquiry  into  the  matter, 
which  finally  resulted  in  light  sentences  for  some  of  the 
suspects.  Pending  the  investigation  by  the  Chilean  au- 
thorities at  Valparaiso,  the  Baltimore  sailed  to  San  Fran- 
cisco, where  an  ex  parte  inquiry  into  the  matter  was  made 
by  the  judge  advocate  of  our  navy.  The  evidence  taken 
by  him  showed  that  before  the  beginning  of  the  riot  the 
American  seamen  had  visited  several  saloons,  but  were 
reported  to  have  been  "perfectly  sober"  and  that  the  first 
blow  was  struck  by  an  American  seaman. 

Nothing  is  clearer  in  international  law  than  that  sailors 
ashore  in  a  foreign  port  are  subject  to  the  local  jurisdic- 
tion, and  that  their  wrongs  are  to  be  redressed  by  the  local 
authorities,  subject  to  the  right  of  their  government  to 
demand  a  money  indemnity  in  proper  cases.  In  this  they 
do  not  differ  from  other  foreigners.  It  is  not  a  question  of 
clothes  or  uniforms.  Neither  our  sailors  nor  our  private 
citizens  are  required  to  visit  foreign  capitals,  especially 
in  times  of  local  revolution  and  excitement;  but  if  they  do, 
they  subject  themselves  to  the  local  jurisdiction;  and  we 
are  bound  by  the  findings  of  local  courts,  if  regularly 
reached  by  due  process  of  law.  In  the  New  Orleans  case, 
a  few  months  before  the  deplorable  riot  in  Valparaiso,  our 
government  refused  the  right  of  Italy  to  question  the 
action  of  the  local  authorities,  although  no  one  was  pun- 

173 


ESSAYS  AND  ADDRESSES 

ished  for  the  wanton  butchery  of  Itahan  subjects  while 
in  jail.  Mr.  Blaine  answered  as  follows  a  demand  of  the 
Italian  foreign  officer  that  the  guilty  parties  should  be 
brought  to  justice:  "The  President  is  unable  to  see  how 
any  government  could  justly  give  an  assurance  of  this 
character  in  advance  of  a  trial  and  verdict  of  guilty."  Yet 
the  same  President,  without  awaiting  the  result  of  the 
Chilean  inquiry,  upon  an  ex  parte  hearing  of  our  own, 
thousands  of  miles  from  the  scene  of  the  riot,  declared  not 
only  the  participants  but  the  Chilean  government  and 
people  guilty  of  intentional  insult  to  the  United  States. 
The  Chilean  government  at  different  times  after  the  riot 
referred  to  it  in  the  diplomatic  correspondence  as  a  ''de- 
plorable occurrence r  a  "lamentable  afair"  which  the 
government  "deeply  deplored";  and  as  "an  occurrence 
which  Chile  has  lamented  and  does  deeply  lament/'  On 
January  8,  1892,  the  new  Chilean  minister  wrote  to  Mr. 
Blaine : 

I  have  also  received  special  instructions  to  state  to  the 
government  of  the  United  States  that  the  government 
of  Chile  has  felt  very  sincere  regret  for  the  unfortunate 
events  which  occurred  in  Valparaiso  on  the  sixteenth  of 
October. 

The  President  of  the  United  States,  refusing  to  accept 
the  findings  of  the  Chilean  courts,  and  having  himself  in- 
dicted, tried,  and  convicted  the  entire  Chilean  nation  of 
intentional  insult  to  the  United  States,  refused  to  accept 
these  apologies  as  sufficient,  and  on  January  21,  1892, 
issued  his  "ultimatum"  demanding  a  more  abject  apology, 
quite  properly  suggesting  a  form  to  be  used,  as  the  Chilean 
officials  had  so  far  failed  to  hit  upon  the  precise  form  of 

174 


AT  THE  PARTING  OF  THE  WAYS 

words  which  he  regarded  as  suitable.  The  Chilean  govern- 
ment received  this  extraordinary  demand  on  January  23d. 
Because  of  the  absence  of  the  President  from  the  capital 
the  Chilean  foreign  office  asked  two  days  within  which  to 
reply.  On  Monday  morning,  January  25,  our  State  De- 
partment received  from  Chile  an  apology  so  abject  that 
the  chairman  of  our  house  committee  on  foreign  affairs 
expressed  his  ''pity  that  a  people  who  seemed  to  he  ani- 
mated by  such  generous  sentiments  should  he  placed  in 
the  position  of  making  so  humhle  an  apology."  Yet,  after 
the  receipt  by  the  State  Department  of  this  communica- 
tion, and  before  the  translation  of  the  cipher,  the  President 
of  the  United  States  at  noon  of  the  same  day  sent  a  special 
message  to  Congress  in  which  he  reviewed  the  findings  of 
the  Chilean  court,  overruling  them,  renewed  his  charges 
against  the  Chilean  government  and  nation,  stated  his 
demands  for  a  further  apology  and  for  indemnity,  and 
urged  that  these  demands  be  vigorously  enforced. 

There  is  probably  nothing  in  our  diplomatic  history 
so  deserving  of  the  censure  of  mankind  as  this  treatment 
by  us  of  a  brave  and  progressive  people  while  engaged  in  a 
life  and  death  struggle  to  preserve  their  liberties.  Think 
of  the  position  in  which  we  placed  the  new  government  of 
Chile,  while  yet  overwhelmed  with  the  difficulties  of  do- 
mestic reorganization.  What  we  deserved  and  gained  by 
this  bit  of  aggressive  foreign  policy  is  the  bitter  hatred  of  at 
least  a  generation  of  Chileans,  and  the  distrust  of  all  the 
Spanish- American  republics,  whose  friendship,  not  whose 
fear,  it  is  our  privilege  and  interest,  and  should  be  our 
policy,  to  cultivate. 

175 


ESSAYS  AND  ADDRESSES 

The  relations  of  the  United  States  to  the  Hawaiian 
revolution  of  1892,  are  better  known  to  the  public,  though 
the  facts  are  still,  in  some  particulars,  subject  of  dispute. 
For  our  purpose  here  it  is  sufficient  briefly  to  recall  the  un- 
disputed facts.  As  early  as  March,  1892,  our  minister  wre 
wTote  to  the  Secretary  of  State:  '^'I  desire  to  know  how  far 
the  present  minister  and  naval  commander  may  deviate 
from  established  international  rules  and  precedents  in  the 
contingencies  indicated"  It  is  plain  that  he  at  least  knew 
in  advance  of  the  proposed  revolution,  and  was  fully  pre- 
pared to  land  the  American  forces  and  recognize  the  revo- 
lutionary government  at  the  moment  it  was  announced. 
This  was  immediately  followed  by  a  hasty  attempt  at 
Washington,  by  a  retiring  administration,  to  rush  through 
annexation  without  adequate  consideration.  The  alleged 
grounds  of  the  change  of  government  in  Hawaii  were 
purely  domestic,  and  of  no  concern  to  the  United  States; 
and  our  eager  participation  in,  if  not  active  encourage- 
ment of,  the  revolution,  and  our  hasty  action  in  the  matter 
of  annexation,  cannot  be  justified  on  any  grounds  con- 
sistent with  the  duty  of  a  great  nation  to  a  weak  and 
friendly  power.  The  action  of  the  present  administration 
in  withdrawing  the  hasty  treaty  from  the  senate;  its  in- 
vestigation and  condemnation  of  the  acts  of  our 
representatives  in  Hawaii  at  the  time  of  the  revolution, 
its  peaceable  attempt  to  restore  the  status  quo,  and  its 
withdrawal  of  our  forces  from  the  islands  and  removal  of 
our  flag  from  the  government  buildings  at  Honolulu,  are 
too  familiar  to  require  more  particular  reference. 

This  series  of  recent  incidents  in  connection  with  our 

176 


AT  THE  PARTING  OF  THE  WAYS 

foreign  relations  was  followed  on  December  17,  1895,  by 
the  President's  extraordinary  and  unexpected  message  in 
regard  to  the  long-standing  boundary  dispute  between 
Great  Britain  and  Venezuela.  The  disputed  territory  is 
of  interest  and  concern  to  the  United  States,  if  at  all,  only 
because  of  an  extensive  grant  of  part  of  it  made  in  April, 
1895,  by  Venezuela  to  certain  wealthy  American  citizens. 
The  controversy  in  respect  to  the  boundary  in  question 
dates  back  to  1814,  the  claims  of  both  parties,  in  the 
language  of  Secretary  Olney,  being  "of  a  somewhat  in- 
definite  nature."  Mr.  Olney  also  in  his  despatch  of  July 
20,  1895,  says  that  "Neither  of  the  parties  is  to-day  stand- 
ing for  the  boundary  line  predicated  upon  strict  legal 
right  —  Great  Britain  having  formulated  no  such  claim 
at  all,  while  Venezuela  insists  upon  the  Essequibo  line  only 
as  a  liberal  concession  to  her  antagonist."  And  again: 
"It  is  not  admitted,  however,  and  therefore  cannot  be 
assumed,  that  Great  Britain  is  in  fact  usurping  dominion 
over  Venezuelan  territory.  While  Venezuela  charges 
such  usurpation,  Great  Britain  denies  it,  and  the  United 
States,  until  the  merits  are  authoritatively  ascertained, 
can  take  sides  with  neither.  But  while  this  is  so  —  while 
the  United  States  may  not,  under  existing  circumstances 
at  least,  take  upon  itself  to  say  which  of  the  two  parties  is 
right  and  which  wrong  —  it  is  certainly  within  its  right 
to  demand  that  the  truth  shall  be  ascertained."  Mr. 
Olney,  therefore,  demanded  arbitration,  and  insisted  upon 
a  definite  decision  "whether  Great  Britain  will  consent 
or  will  decline  to  submit  the  Venezuelan  boundary  ques- 
tion in  its  entirety  to  impartial  arbitration."    His  despatch 

177 


ESSAYS  AND  ADDRESSES 

significantly  referred  to  '  'the  measures  necessary  or  proper 
for  the  vindication"  of  the  poHcy  of  the  United  States  "to 
be  determined  by  another  branch  of  the  government,"  and 
that  an  adverse  decision  will  be  a  result  "calculated  to 
greatly  embarrass  the  future  relations  between  this  coun- 
try and  Great  Britain." 

Lord  Salisbury,  under  date  of  November  26,  1895, 
answered  Secretary  Olney's  despatch,  referring  to  the 
boundary  dispuate  as  a  "controversy  with  which  the  United 
States  have  no  apparent  practical  concern/'  He  says  that 
Her  Majesty's  government  "are  not  prepared  to  admit 
that  the  interests  of  the  United  States  are  necessarily  con- 
cerned in  every  frontier  dispute  which  may  arise  between 
any  two  of  the  States  who  possess  dominion  in  the  Western 
Hemisphere ;  and  still  less  can  they  accept  the  doctrine  that 
the  United  States  are  entitled  to  claim  that  the  process  of 
arbitration  shall  be  apphed  to  any  demand  for  the  sur- 
render of  territory  which  one  of  those  States  may  make 
against  another."    And  again  he  says: 

Although  the  negotiations  in  1890,  1891,  and  1893,  did 
not  lead  to  any  result.  Her  Majesty's  government  have 
not  abandoned  the  hope  that  they  may  be  resumed  with 
better  success,  and  that  when  the  internal  politics  of 
Venezuela  are  settled  on  a  more  durable  basis  than  has 
lately  a])peared  to  be  the  case,  her  government  may  be 
enabled  to  adopt  a  more  moderate  and  conciliatory  course 
in  regard  to  this  question  than  that  of  their  predecessors. 
Her  Majesty's  government  are  sincerely  desirous  of  being 
on  friendly  relations  with  Venezuela,  and  certainly  have  no 
design  to  seize  territory  that  properly  belongs  to  her,  or 
forcibly  to  extend  sovereignty  over  any  portion  of  her 
population. 

They  have,  on  the  contrary,  repeatedly  expressed  their 

178 


AT  THE  PARTING  OF  THE  WAYS 

readiness  to  submit  to  arbitration  the  conflicting  claims  of 
Great  Britain  and  Venezuela  to  large  tracts  of  territory 
which  from  their  auriferous  nature  are  known  to  be  of 
almost  untold  value.  But  they  cannot  consent  to  enter- 
tain, or  to  submit  to  the  arbitration  of  another  power  or 
of  foreign  jurists,  however  eminent,  claims  based  on  the 
extravagant  pretensions  of  Spanish  officials  in  the  last 
century,  and  involving  the  transfer  of  large  numbers  of 
British  subjects,  who  have  for  many  years  enjoyed  the 
settled  rule  of  a  British  colony,  to  a  nation  of  different  race 
and  language,  whose  political  system  is  subject  to  fre- 
quent disturbance,  and  whose  institutions  as  yet  too  often 
afford  very  inadequate  protection  to  life  and  property. 

The  President  responded  by  his  message  to  Congress  of 
December  17,  1895.  In  this  he  states  that  our  government 
proposed  arbitration  "without  any  conviction  as  to  the 
final  merits  of  the  dispute,  hut  anxious  to  learn  in  a  satis- 
factory and  conclusive  manner  whether  Great  Britain 
sought,  under  a  claim  of  boundary,  to  extend  her  posses- 
sions on  this  continent  without  right,  or  whether  she 
fnerely  sought  possession  of  territory  fairly  included 
within  her  lines  of  ownership."  As  both  the  President  and 
Secretary  Olney  expressly  disavow  holding  "a7iy  convic- 
tion as  to  the  final  merits  of  the  dispute/^  the  former  pro- 
posed a  commission  to  determine  "the  true  divisional  line 
between  the  republic  of  Venezuela  and  British  Guiana." 
The  message,  like  Mr.  Olney's  despatch,  concludes  with 
an  ominous  threat  of  war.  Referring  to  the  report  of  the 
proposed  commission,  the  President  says : 

When  such  report  is  made  and  accepted  it  will,  in  my 
opinion,  be  the  duty  of  the  United  States  to  resist,  by  every 
means  in  its  power,  as  a  wilful  aggression  upon  its  rights 
and  interests,  the  appropriation  by  Great  Britain  of  any 

179 


ESSAYS  AND  ADDRESSES 

lands  or  the  exercise  of  governmental  jurisdiction  over  any 
territory  which  after  investigation  we  have  determined  of 
right  belongs  to  Venezuela. 

In  making  these  recommendations  I  am  fully  alive 
to  the  responsibility  incurred,  and  keenly  realize  all  the 
consequences  that  may  follow.  I  am  nevertheless  firm 
in  my  conviction,  that,  while  it  is  a  grievous  thing  to  con- 
template the  two  great  English-speaking  peoples  of  the 
world  as  being  otherwise  than  friendly  competitors  in  the 
onward  march  of  civilization,  and  strenuous  and  worthy 
rivals  in  all  the  arts  of  peace,  there  is  no  calamity  which 
a  great  nation  can  invite  which  equals  that  which  follows 
a  supine  submission  to  wrong  and  injustice  and  the  con- 
sequent loss  of  national  self-respect  and  honor  beneath 
which  are  shielded  and  defended  a  people's  safety  and 
greatness. 

These  ominous  words,  the  hastj^  and  unanimous  action 
of  Congress,  and  the  savage  yell  of  approval  of  a  sensa- 
tional press,  startled  the  world,  seriously  affected  the 
exchanges  and  business  relations  of  two  continents,  and 
rendered  the  peaceful  settlement  of  what  was  in  itself  a 
petty  controversy  exceedingly  difficult.  The  commission 
has  been  aippointed  and  is  now  striving  to  find  out  for 
us  whether  for  more  than  eighty  years  Great  Britain, 
under  claim  of  a  boundary  dispute  in  the  wilds  of  South 
America,  has  threatened,  in  the  disquieting  language  of 
Mr.  Olney  and  the  President,  our  "safety,  security,  and 
welfare,"  "  the  integrity  of  our  free  institutions,"  and  "  the 
tranquil  maintenance  of  our  distinctive  form  of  govern- 
ment"; and  especially  whether  during  all  these  years,  as 
the  President  now  fears,  our  "safety  and  greatness"  have 
been  deprived  of  the  shield  and  defence  of  "national  self- 
respect  and  honor"  through  the  terrible  calamity  of  '\a 

180 


AT  THE  PARTING  OF  THE  WAYS 

supine  submission  to  wrong  and  injustice''  in  the  form  of 
settled  English  rule  over  territory  which  under  the  South 
American  system  is  of  right  entitled  to  at  least  one  revo- 
lution a  year.  The  real  question  submitted  to  the  com- 
mission is  not,  what  are  the  rights  of  the  parties  to  the 
boundary  controversy.  Both  the  President  and  the  Secre- 
tary of  State  disclaim  ''any  cojwiction  as  to  the  final  merits 
of  the  dispute"  or  knowledge  whether  Great  Britain  ''is 
in  fact  usurping  dominion  over  Venezuelan  territory." 
The  real  inquiry  is  whether  during  all  these  eighty  years 
the  very  "safety"  and  "integrity"  of  "our  free  institu- 
tions" have  been  unconsciously  imperiled  by  a  "supine 
submission  to  wrong  and  injustice"  in  far-away  Vene- 
zuela. 

This  would  have  been  very  grotesque  if  produced  in 
the  form  of  comic  opera.  Presented  as  it  was,  accom- 
panied by  an  appeal  to  the  evil  passions  of  two  continents, 
with  a  dark  background  of  war,  world-wide  calamity,  and 
uncounted  hosts  of  dead  and  wounded,  and  untold  num- 
bers of  widows  and  orphans,  it  suddenly  broke  upon  the 
world  as  one  of  the  most  terrible  of  modern  possibilities. 
Before  this  awful  picture  civilization  stood  aghast,  won- 
dering whether  its  boasted  progress  is  but  a  mere  veneer. 

These  and  some  minor  incidents  constitute  thus  far  the 
tangible  results  of  what  is  known  as  an  aggressive,,  or  vig- 
orous^ foreign  policy.  It  is  already  evident  that  this  policy 
is  one  of  such  possibilities  that  other,  and  perhaps,  even 
more  startling  results  may  appear  at  any  time.  Thus  far 
it  means,  as  illustrated  by  these  incidents,  the  courting, 
not  avoiding,  of  foreign  entanglements.     It  also  proposes 

181 


ESSAYS  AND  ADDRESSES 

an  indefinite  extension,  regardless  of  means  and  interna- 
tional law,  of  our  jurisdiction  over  this  continent  and  such 
islands  as  we  may  choose  to  include.  Each  of  the  incidents 
above  recounted  discloses  a  tendency  to  disregard  estab- 
lished restraints  and  international  usages,  and  to  substitute 
might  for  right.  This  course  is  widely  held  to  be  justified, 
and  even  required,  by  what  is  known  as  the  Monroe 
Doctrine. 

The  so-called  Monroe  Doctrine,  until  recently,  was 
simply  a  defensive  policy.  It  was  not  even  a  departure 
from  the  pacific  foreign  policy  inaugurated  by  Washing- 
ton. At  the  conclusion  of  the  Napoleonic  wars  the  em- 
perors of  Russia  and  Austria  and  the  king  of  Prussia 
organized  the  "Holy  Alliance"  to  conserve  and  maintain 
absolutism  in  Europe  and  over  all  lands  claimed  by  Euro- 
pean nations.  France  afterwards  joined  the  movement. 
The  object  stated  in  the  Treaty  of  Paris  of  September  26, 
1815,  creating  the  alliance,  was  that  the  "three  allied 
princes,  looking  upon  themselves  as  merely  delegated  by 
providence  to  govern  three  branches  of  one  family"  should, 
"both  in  the  administration  of  their  respective  States, 
and  in  their  political  relations  with  every  other  govern- 
ment, take  for  their  sole  guide  the  precepts  of  that  holy 
religion;  namely,  the  precepts  of  justice.  Christian  charity 
and  peace,"  and  that  they  should  "lend  one  another,  on 
every  occasion  and  in  every  place,  assistance,  aid  and 
support."  This  precious  combination  within  a  few  years 
held  several  conferences,  suppressed  popular  movements 
in  Italy  and  Spain,  and  issued  circulars  denouncing  "re- 
volt and  crime"  and  "any  pretended  reform  effected  by 

182 


AT  THE  PARTING  OF  THE  WAYS 

revolt  and  open  force,"  and  declaring  that  European 
powers  "had  an  undoubted  right  to  take  a  hostile  attitude 
in  regard  to  those  States  in  which  the  overthrow  of  the 
government  might  operate  as  an  example."  They  finally 
agreed  by  secret  treaty  "to  put  an  end  to  the  system  of 
representative  governments"  in  Europe,  and  to  destroy 
the  liberty  of  the  press.  In  the  Summer  of  1823  the  Alli- 
ance notified  the  British  government  of  a  proposed  con- 
gress with  a  view  to  the  termination  of  the  revolutionary 
governments  in  Spanish  America.  These  governments 
had  been  acknowledged  by  the  United  States,  and  the 
merchants  of  both  Great  Britain  and  the  United  States 
had  built  up  a  large  trade  with  them.  Canning,  the 
English  foreign  minister,  suggested  to  our  minister  at  Lon- 
don a  joint  declaration  against  intervention  by  the  allies. 
The  matter  was  carefully  considered  by  the  cabinet,  and 
Madison  and  Jefferson  were  consulted.  It  was  believed 
by  some,  that  it  was  the  intention  of  the  Alliance  to  par- 
tition the  Spanish-American  territory,  Russia  taking 
California,  Peru,  and  Chile;  and  France,  Mexico;  and  that 
the  Alliance  had  an  ultimate  design  upon  our  territory  and 
the  suppression  of  free  institutions  in  America.  The  view 
of  Mr.  Adams,  that  we  should  form  no  entangling  alliance 
with  England,  but  that  each  American  government  should 
make  its  own  declaration,  prevailed.  The  English  min- 
ister, therefore,  advised  the  French  ambassador  that  Eng- 
land would  remain  neutral  in  any  war  between  Spain  and 
her  revolted  colonies,  but  take  such  action  as  her  interests 
required,  in  case  of  the  "junction"  of  any  other  foreign 
power  with  Spain  against  them.    Our  part  in  preventing 

183 


ESSAYS  AND  ADDRESSES 

the  proposed  intervention  by  the  Alliance  was  the  well- 
known  declaration  by  President  Monroe  in  his  message  of 
December  3,  1823.  He  refers  to  the  different  "political 
system"  of  the  "allied  powers,"  and  declared  that  "we  owe 
it  .  .  .  to  candor  and  to  the  amicable  relations  ex- 
isting between  the  United  States  and  those  powers,  to 
declare  that  we  should  consider  any  attempt  on  their  part 
to  extend  their  system  to  any  portion  of  this  hemisphere 
as  dangerous  to  our  peace  and  safety." 

These  declarations  of  hostility  by  both  the  United 
States  and  Great  Britain  led  the  allied  powers  to  abandon 
their  purposes  in  respect  to  this  continent,  and  Great 
Britain  soon  after  recognized  the  independence  of  the 
Spanish- American  republics. 

In  connection  with  the  Panama  congress  in  1826, 
President  Adams  in  his  message  to  the  senate  says:  "An 
agreement  between  all  the  parties  represented  at  the 
meeting  that  each  will  guard  by  its  own  means  against  the 
establishment  of  any  future  European  colony  within  its 
borders  may  be  found  advisable."  And  again:  "Should 
it  be  deemed  advisable  to  contract  any  conventional  en- 
gagement on  this  topic,  our  views  would  extend  no  further 
than  to  a  mutual  pledge  of  the  parties  to  the  compact  to 
maintain  the  principle  in  its  own  territory."  The  house 
passed  resolutions  defining  our  foreign  policy  to  be  to 
preserve  "peace,  commerce  and  friendship  with  all  nations 
and  form  entangling  alliances  with  none:  and  declaring 
against  any  convention  or  joint  declaration  with  the  Span- 
ish-American republics  for  the  purpose  of  preventing  the 
interference  of  any  of  the  European  powers  with  their 

184 


AT  THE  PARTING  OF  THE  WAYS 

independence  or  form  of  government,"  and  "that  the  peo- 
ple of  the  United  States  should  he  left  free  to  act  in  any 
crises  in  such  a  manner  as  their  feelings  of  friendship,  and 
as  their  own  honor  and  policy  may  at  the  time  dictate." 

Thus  we  see  how  carefully  the  Monroe  Doctrine,  or 
policy,  was  limited  when  first  declared.  It  was  asserted 
solely  for  purposes  of  defence;  and,  while  it  was  desired 
that  the  Spanish-American  republics  should  assert  and 
maintain  the  same  policy,  each  as  to  its  own  territory,  care 
was  taken  to  form  no  entangling  alliances  even  with  them 
to  declare  or  enforce  it,  that  we  may  remain  free  to  act 
in  a  given  crisis  as  our  own  honor  and  policy  may  at  the 
time  dictate. 

The  very  proper  and  effective  enforcement  of  this  doc- 
trine in  causing  Napoleon  to  withdraw  the  French  troops 
from  Mexico  at  the  close  of  our  Civil  War,  admirably 
illustrates  its  proper  place  in  our  foreign  policy.  In  our 
own  serious  boundary  disputes  with  Great  Britain,  involv- 
ing vast  interests  on  our  northeast  and  northwest 
boundaries,  it  was  not  dreamed  to  have  any  application 
whatever.  We  have  again  and  again  since  the  announce- 
ment of  this  policy  witnessed  bombardments  and  seizures 
of  the  ports  of  the  South  and  Central  American  States 
by  England,  France,  and  Spain,  to  enforce  claims  for 
indemnity  and  other  jDurposes,  without  even  a  suggestion 
that  this  involved  any  interest  of  our  own. 

The  Holy  Alliance  long  since  passed  away,  and  con- 
stitutional government  prevails  to-day  in  the  capitals 
where  its  treaties  were  made.  The  Monroe  Doctrine  will 
never  again  have  to  be  asserted  against  European  absolu- 

185 


ESSAYS  AND  ADDRESSES 

tism.  That  doctrine  served  us  well  when  first  announced, 
and  later  in  the  Mexican  case,  and  may  serve  us  well  again. 
Its  use,  however,  as  the  basis  of  an  aggressive  foreign 
policy  is  not  only  entirely  novel,  but  directly  contrary  to 
its  original  purpose.  We  may,  therefore,  conclude  that 
the  acts  which  thus  far  constitute  the  aggressive  foreign 
policy  upon  which  we  seem  to  have  entered,  are  neither 
supported  nor  required  by  the  policy  known  as  the  Mon- 
roe Doctrine.  It  also  seems  clear  that  these  acts  are  not 
within  the  traditional  foreign  policy  established  by  Wash- 
ington and  pursued  by  the  United  States  for  a  hundred 
years.  We  are  in  fact  at  the  parting  of  the  ways,  and 
should  now  decide  upon  our  future  course. 

It  may  be  frankly  conceded  that  a  policy  which  was 
wise  in  Washington's  day  and  long  thereafter,  may  not  be 
so  now,  and  that  it  is  sometimes  desirable  to  reexamine  a 
policy,  however  venerable  and  authoritative,  to  determine 
whether  it  still  meets  the  requirements  of  a  developing 
national  Hfe.  The  real  question  is  not  whether  the  acts 
above  recounted  are  within  the  policy  laid  down  by  Wash- 
ington, or  in  accord  with  the  Monroe  Doctrine;  but 
whether  they  are  wise  and  in  line  with  what  should  now  be 
the  foreign  pohcy  of  the  United  States.  This  is  a  question 
of  self-interest,  having  due  regard  to  our  obligations  to 
other  nations.  Our  government  is  formed  to  "establish 
justice,  provide  for  the  common  defense,  promote  the  gen- 
eral welfare,  and  secure  the  blessings  of  liberty  to  ourselves 
and  our  posterity"  Its  duty  lies  entirely  within  what 
tends  to  conserve  these  purposes.  The  presumption  seems 
irresistible  that  we  shall  still,  as  in  Washington's  day,  best 

186 


AT  THE  PARTING  OF  THE  WAYS 

promote  justice  and  the  general  welfare  by  cultivating 
"peace  and  harmony  with  all"  nations,  and  by  "diffusing 
and  diversifying  by  gentle  means  the  streams  of  com- 
merce^ hut  forcing  nothing."  We  have  long  since  reached 
the  time  which  he  foresaw,  "when  we  may  defy  material 
injury  from  external  annoyance;  when  we  may  take  such 
an  attitude  as  will  cause  the  neutrality  we  may  at  any  time 
resolve  upon  to  be  scrupulously  respected;  when  belliger- 
ent nations,  under  the  impossibility  of  making  acquisitions 
upon  us,  will  not  lightly  hazard  the  giving  us  provocation ; 
when  we  may  choose  peace  or  war  as  our  interest  guided 
by  our  justice  shall  counsel.  Why  forego  the  advantages 
of  so  peculiar  a  situation?  Why  quit  our  own  to  stand 
upon  foreign  ground?" 

The  Monroe  Doctrine,  as  we  have  seen,  was  announced 
as  a  defensive  policy.  It  was  a  declaration  for  a  specific 
purpose  and  aimed  to  meet  an  existing  and  imminent 
danger,  and  was  both  timely  and  effective.  When  Mr. 
Seward  enforced  the  same  policy  in  Mexico  he  made  no 
claim  that  it  was  a  doctrine,  or  rule  of  international  law, 
or  that  our  peace  and  safety  were  in  any  way  involved. 
He  did  not  even  mention  the  name  of  President  Monroe, 
but  only  urged  the  principle  which  "the  United  States 
hold  in  relation  to  all  other  nations,"  that  "they  have 
neither  a  right  nor  any  disposition  to  intervene  by  force  in 
the  internal  affairs  of  Mexico,  whether  to  maintain  a  re- 
publican, or  even  despotic,  government  there,  or  to  over- 
throw an  imperial  or  a  foreign  one,  if  Mexico  shall  choose 
to  establish  it  or  accept  it";  and  he  finally  insisted  upon  the 
withdrawal  of  the  French  troops  solely  upon  the  ground 

187 


ESSAYS  AND  ADDRESSES 

that  we  would  not  permit  the  establishment  of  a  foreign 
government  in  Mexico  against  the  will  of  the  Mexican  peo- 
ple. The  time  had  then  long  since  passed  when  our 
"safety"  could  be  seriously  involved  by  anything  that 
might  occur  elsewhere  on  this  continent.  Yet  now,  having 
brought  out  the  Monroe  Doctrine  as  a  support  for  an 
aggressive  foreign  policy,  we  have  fallen  back  on  the 
theory  of  danger  to  our  "peace  and  safety"  as  a  justifica- 
tion for  interference  in  every  petty  dispute  that  arises 
between  European  States  and  the  South  and  Central 
American  Republics.  Thus  Mr.  Olney  says  that  "the 
safety  and  welfare  of  the  United  States  are  so  concerned 
with  the  maintenance  of  the  independence  of  every  Ameri- 
can State  as  against  any  European  power,  as  to  justify 
and  require  the  interposition  of  the  United  States  when- 
ever that  independence  is  endangered" :  and  that  we  can- 
not permit  "our  only  real  rivals  in  peace,  as  well  as  enemies 
in  war"  to  he  "located  at  our  very  doors." 

Even  in  1848  Mr.  Calhoun,  who  it  will  be  remembered 
was  of  the  cabinet  of  President  Monroe,  in  a  speech  in. 
respect  to  the  then  proposed  occupation  of  Yucatan,  refers 
to  the  "absurdity  of  asserting  that  the  attempt  of  any 
European  State  to  extend  its  system  of  government  to 
this  continent,  the  smallest,  as  well  as  the  greatest,  would 
endanger  the  peace  and  safety  of  our  country." 

Mr.  Cleveland,  while  insisting  that  our  peace  and  safety 
are  involved,  seems  to  find  that  our  greatest  danger  in  the 
Venezuelan  boundary  dispute  lies  in  "a  supine  submission 
to  wrong  and  injustice"  of  which  we  have  been  uncertain, 
if  not  unconscious,  for  more  than  eighty  years.     Surely 

188 


AT  THE  PARTING  OF  THE  WAYS 

such  dangers  cannot  be  regarded  as  imminent.  They  are 
trivial  in  comparison  with  the  grave  domestic  dangers 
which  an  aggressive  foreign  pohcy  is  causing  us  to  neglect. 
Anyway,  if,  as  the  President  admits,  "any  adjustment  of 
the  boundary  which  Venezuela  may  deem  for  her  advan- 
tage and  may  enter  into  of  her  own  free  will  cannot,  of 
course,  be  objected  to  by  the  United  States,"  is  it  not  time 
to  abandon  as  a  survival  the  idea  that  our  "peace  and 
safety"  are  involved?  The  fact  no  doubt  is  that  the  Presi- 
dent, finding  the  theory  of  danger  to  our  peace  and  safety 
incorporated  in  the  Monroe  Doctrine,  as  an  orthodox  Pres- 
byterian did  not  feel  authorized  to  disregard  it.  This  is 
of  course  a  necessary  disadvantage  of  accepting  President 
Monroe's  statements  of  a  good  policy  for  a  specific  pur- 
pose, as  an  inspired  doctrine  of  universal  application. 

The  time  has  come  for  us  frankly  to  admit  that  our  new 
foreign  policy  does  not  rest  upon  any  fear  of  danger  to 
our  own  peace  and  safety ;  but  upon  a  desire  to  meddle  in 
the  affairs  of  others.  We  may  also  as  frankly  acknowl- 
edge that  we  are  not  at  bottom  so  deeply  concerned  on 
behalf  of  Venezuela  as  a  "Sister  Republic"  against  the 
dangers  to  be  feared  from  the  monarchical  institutions  of 
Great  Britain  as  Mr.  Olney  would  have  the  world  believe. 
We  care  much  for  republican  institutions,  but  have  yet 
some  sense  of  proportion,  and  realize  something  of  the 
difference  between  form  and  substance. 

We  know  that  the  monarchical  "system"  against  which 
the  Monroe  Doctrine  was  uttered  does  not  exist  in  Europe 
to-day  outside  of  Russia  and  Turkey ;  and,  always  except- 
ing Mr.  Olney,  we  are  not  greatly  alarmed  by  the  possi- 

189 


ESSAYS  AND  ADDRESSES 

bility  that  some  time  the  "settled  rule  of  a  British  colony" 
may  prevail  in  a  bit  of  disputed  territory  in  South  America 
in  lieu  of  a  corrupt  miUtary  tyranny,  which  is  merely  a  re- 
public in  name. 

American  civilization  has  substituted  a  state  of  peace 
for  a  state  of  war.  Its  fundamental  idea  is  that  the  govern- 
ment exists  for  the  people,  not  the  people  for  the  govern- 
ment. From  this  it  follows  that  the  nation  can  have  no 
interest  or  duty  apart  from  the  people's  welfare;  that  no 
question  of  national  honor  or  dignity  can  properly  arise, 
which  is  not  directly  related  to  their  material  or  moral  well 
being;  and  that  it  is  the  chief  end  of  their  government  to 
maintain  justice  and  peace,  so  that  nothing  shall  interfere 
with  the  fundamental  rights  of  the  people  to  life,  liberty, 
and  the  pursuit  of  happiness. 

It  is  yet  assumed,  in  lands  where  the  people  exist  merely 
to  serve  the  government,  that  no  objection  based  on  their 
material  interests  should  be  raised  to  any  demand  upon 
them  in  support  of  what  the  government  chooses  to  regard 
as  the  national  honor;  but  where  the  government  is  of  the 
people,  by  the  people,  for  the  people,  it  has  no  right  to 
interfere  with  their  peaceful  pursuits,  except  when  the 
national  life  or  character  is  endangered. 

The  idea  that  we  have  need  of  an  aggressive  foreign 
war  at  least  once  in  a  generation  to  keep  alive  our  patriot- 
ism and  preserve  our  manhood  from  effeminacy,  deserves 
serious  notice  only  because  its  advocates  include  men  of 
education  and  position.  Even  Chief  Justice  Holmes  of 
the  Supreme  Court  of  Massachusetts,  in  an  address  to 
students,  urges  that  "war  is  the  business  of  youth  and 

190 


AT  THE  PARTING  OF  THE  WAYS 

early  middle  age" ;  that  "in  this  snug  over-safe  corner  of 
the  world"  we  need  its  discipline  to  make  us  "ready  for 
danger" ;  and  that  its  losses  would  be  a  "price  well  paid 
for  the  breeding  of  a  race  jit  for  hardship  and  command" 
Such  sentiments  as  these  are  worthy  only  of  savages.  They 
should  not  find  expression  in  the  land  of  Washington  and 
Lincoln.  If  the  nation  as  a  whole  must  kill  and  destroy 
in  order  to  maintain  its  physical  courage  and  testify  to  its 
indifference  to  material  gain,  as  Judge  Holmes  would  have 
us  believe,  what  answer  shall  we  make  to  the  individual 
who  kills  and  destroys  to  maintain  his  personal  courage, 
and  to  show  his  disregard  for  wordly  gain  and  love  for 
things  of  the  spirit?  We  have  as  individuals  left  duelling 
and  its  code  of  honor  behind.  It  is  the  American  idea 
that  nations  should  do  likewise.  Judge  Holmes  would 
have  us  believe  that  the  profoundly  difficult  problems  of 
peace,  the  subduing  of  a  vast  continent,  do  not  furnish  us 
sufficient  opportunity.  The  time  has  come  to  preach  and 
believe  that  the  problems  of  modern  life  demand  moral, 
rather  than  physical,  courage. 

"  Life  may  be  given  in  many  ways. 
And  loyalty  to  trust  be  sealed 
As  bravely  in  the  closet  as  the  field." 

It  is  a  gross  abuse  for  such  a  government  as  ours  to 
appeal  to  the  patriotic  sentiment  of  the  people  in  support 
of  a  meddlesome  foreign  policy  touching  matters  in  which 
they  have  no  perceptible  interest.  Many  of  our  great 
bankers  and  merchants  have  discharged  a  patriotic  duty 
in  protesting  against  such  an  appeal.  They  may  well 
ignore  all  charges  like  that  of  Mr.  Roosevelt  that  their 

191 


ESSAYS  AND  ADDRESSES 

conduct,  in  setting  up  the  material  interests  of  the  nation 
against  what  he  dignifies  as  the  national  honor,  is  infa- 
mous. Our  civilization  rests  upon  a  vast  system  of  trade 
and  commerce,  which  extends  round  the  world.  It  is  the 
basis  not  onty  of  our  material,  but  moral  well  being.  To 
give  these  vast  interests  free  play  by  administering  justice 
at  home  and  cultivating  peace  and  harmony  with  all  the 
world,  is  the  first  duty  of  government. 

We  may  well  inquire  whether  the  aggressive  foreign 
policy  upon  which  we  have  entered,  is  not  merely  a  brutal 
expression  of  our  awakening  sense  of  the  immense  and 
growing  importance  of  the  United  States  to  the  world. 
We  are  becoming  conscious  of  our  strength,  and  wonder 
whether  the  world  realizes  it  as  we  do.  Our  youth  are 
nurtured  upon  the  history  of  generations  of  strife.  Our 
ideals  of  glory  are  derived  from  a  military  age  whose 
clouds  still  obscure  the  modern  sky.  What  we  mean  by 
national  honor  is  derived  from  the  duellists'  code.  We  are 
envious  of  Great  Britain's  world-wide  influence,  gained 
under  a  theory  of  government  which  yet  rates  ships  and 
guns  and  armed  men  above  ideas,  and  which  still  proclaims 
that  might  makes  right.  For  the  moment  forgetting 
Washington's  vision  of  a  national  life  that  shall  impress 
the  imagination  of  the  world  by  a  spectacle  of  peace,  lib- 
erty, and  prosperity,  we  seek  to  imitate  Great  Britain  in 
the  field  of  foreign  aggression,  which  she  has  made 
peculiarly  her  own,  and  in  which  we  may  scarcely  hope  to 
rival  her  at  this  late  day. 

This  aggressive  foreign  policy,  whose  first  fruits  we 
have  but  tasted,  does  not  become  us  well.    It  is  a  reversion 

192 


AT  THE  PARTING  OF  THE  WAYS 

to  a  lower  type  from  that  to  which  we  are  accustomed. 
It  should  be  wholly  abandoned  before  it  becomes  a  national 
habit.  Whatever  we  desire,  and  we  may  properly  wish 
it  so,  our  country  shall  henceforth  have  an  increasing 
influence  in  the  councils  of  the  world.  Even  now  her  voice, 
when  she  but  speaks  in  the  ordinary  tones  in  which  gentle- 
men converse,  is  heard  round  the  world.  Already  her 
strength  and  disinterestedness  are  so  respected  that  she 
has  only  to  speak  words  of  soberness  and  justice  to  be 
heeded  as  well  as  heard.  Why  forego  the  advantages  of 
so  splendid  a  position?  Why  quit  it  to  stand  upon  lower 
ground  ? 


193 


NATIONAL  SELF-INTEREST:    A  REPLY  TO 
WASHINGTON  GLADDEN* 

T\R'  WASHINGTON  GLADDEN,  in  a  recent  arti- 
^  ele  in  "The  Outlook"  on  "The  Issues  of  the  War" 
wherein  he  advocates  a  poHcy  of  national  extension,  clearly 
discloses  the  hazy  state  of  mind  of  the  philanthropic 
crusaders  who  have  come  to  the  support  of  the  jingoes. 
Dr.  Gladden  states  the  position  of  the  jingoes  and  severely 
rebukes  it.  He  fails,  however,  to  see  that  his  own  position 
if  accepted  will  remove  the  only  obstacle  to  their  pro- 
gramme. The  jingoes  desire  empire  for  its  own  sake.  To 
them,  the  adoption  by  the  United  States  of  a  policy  of 
extension  of  its  jurisdiction  whenever  possible  in  all  parts 
of  the  world  means  a  vastly  increased  national  expenditure, 
a  great  army  and  navy,  and  indefinite  multiplication  of 
public  places  and  contracts  and  untold  opportunities  for 
foreign  plunder  —  in  a  word,  unlimited  spoils.  To  this 
end,  the  one  thing  required  is  the  support  by  public  opin- 
ion, not  of  their  selfish  motives,  but  of  their  policy.  The 
danger  of  the  hour  is  that  they  will  continue  to  be  so  rein- 
forced, by  those  who  desire  empire  as  the  basis  of  a  moral 
crusade  for  the  renovation  and  improvement  of  the  race, 
as  to  render  all  opposition  to  their  policy  futile. 

Some  of  the  jingoes,  as  Dr.  Gladden  says,  "sneer  at 
the  folly  of  waging  war  for  the  welfare  of  an  alien  people." 
In  return  he  severely  arraigns  them  for  seeking  to  lead 

*The  manuscript  of  this  paper  is  dated  July  30,  1898. 

194 


NATIONAL   SELF-INTEREST 

the  nation  "into  the  business  of  wholesale  robbery"  that 
they  may  "take  their  chances  of  getting  their  full  share 
of  the  booty."  Yet,  in  pursuit  of  a  vague  philanthropy, 
he  proposes  to  join  hands  with  them  in  a  common  enter- 
prise of  territorial  expansion.  There  is  here  no  difference 
of  national  poHcy,  only  a  diversity  of  motives  among  the 
supporters  of  a  common  policy.  The  jingoes  would  extend 
our  national  authority  over  the  Philippines  for  purposes 
of  plunder.  It  matters  not  to  them  that  Dr.  Gladden 
and  his  followers  acquiesce  to  secure  opportunity  for  the 
nation  to  perform  what  he  conceives  to  be  its  duty  to  a 
weaker  people.  Only  by  a  continuance  of  this  cooperation 
of  philanthropic  crusaders  with  "pirates"  and  "buc- 
caneers" (whom  Dr.  Gladden  would  "shoot  on  the  spot") 
can  public  opinion  be  controlled  in  support  of  any  con- 
siderable extension  of  our  national  authority. 

"This  nation  will  have  to  get  the  consent  of  its  own 
conscience  before  going  to  war  for  any  purpose  whatever," 
as  Dr.  Gladden  says.  The  jingoes  alone  could  not  have 
led  us  into  this  war.  Upon  the  appearance  of  serious 
danger  of  war  for  mere  conquest  at  their  demand,  Dr. 
Gladden  would  have  been  among  the  first  to  go  gunning 
for  them.  The  conscience  of  the  nation  was  stilled  into 
acquiescence,  if  not  active  approval,  by  sad  stories  of 
oppression  and  horrible  pictures  of  starving  women  and 
children.  True,  as  Dr.  Gladden  says  of  the  members  of 
Congress  as  to  the  existence  of  a  republic,  we  were  "  doubt- 
less very  credulous"  in  regard  to  the  situation.  Some 
lingering  misgivings  as  to  the  righteousness  of  our  cause, 
or  at  least  as  to  whether  the  resources  of  diplomacy  were 

195 


ESSAYS  AND  ADDRESSES 

exhausted,  may  in  part  account  for  our  cordial  acceptance 
of  English  sympathy  and  support.  The  question  now  is, 
whether  the  consent  or  acquiescence  of  the  national  con- 
science thus  obtained  for  the  cause  of  a  next-door  neigh- 
bor, shall  be  extended  to  a  policy  of  distant  and  general 
conquest. 

Dr.  Gladden  acknowledges  but  "little  patience  with 
those  [whoever  they  are]  who  are  insisting  that  this  nation 
owes  no  duties  to  weaker  peoples;  that  it  must  forever 
maintain  that  attitude  of  isolation  to  which  our  traditional 
policy  has  committed  it."  He  suggests  "the  pig  who  wal- 
lows in  his  own  fat"  as  the  type  to  which  a  century  of 
egoism  has  brought  us;  and  assumes  that,  in  our  isolation, 
we  have  performed  none  of  our  duties  to  our  neighbors, 
and  especially  to  "weaker  peoples."  This  accords  with 
much  recent  and  indefinite  talk  of  our  national  "isolation." 

The  time  has  come  to  call  upon  those  who  complain  of 
our  isolation  for  a  bill  of  particulars.  The  nation  is  asked 
to  abandon  the  tried  policy  of  a  century  under  which  it  has 
prospered  and  wielded  a  beneficent  and  growing  influence 
in  the  larger  world.  That  "humanity  has  come  to  the 
consciousness  of  its  solidarity";  that  we  have  an  impulse 
to  "smite  misgovernment"  wherever  found,  and  thus  con- 
tribute to  "the  enlargement  of  liberty";  that  we  should 
take  control  of  foreign  territory  to  "give  the  people  a 
thousand  times  more  liberty  than  they  ever  dreamed  of 
possessing,"  furnishes  no  solution  to  the  problem  of  the 
hour. 

What  duty  to  others  has  our  country  in  the  past  left 
unperformed  ?   When  and  where  has  our  isolation  led  it 

196 


NATIONAL   SELF-IXTEREST 

to  refuse  or  fail  to  share  in  "the  work  of  the  world"  ?  In 
what  particulars  should  it  now  change  its  attitude  ?  What 
are  its  new  duties,  and  to  whom  are  they  due  ?  Is  our  new 
and  aggressive  foreign  policy  of  general  application,  or 
is  it  reser^^ed  for  "weaker  peoples"?  How  shall  we  keep 
it  from  being  an  expression  of  brute  force  for  conquest, 
and  control  it  in  the  interests  of  a  moral  crusade  ?  Will  a 
burning  desire  to  "shoot  on  the  spot"  those  members  of 
the  expedition  who  would  "break  into  any  nation's  ter- 
ritory" to  plant  there  our  flag  "for  purposes  of  conquest" 
prove  sufficient  to  confine  the  crusade  to  purposes  of 
"justice,  honor,  humanity"  ?  Can  we  return  to  militarism 
without  foregoing  the  advantages  of  a  splendid  position 
in  which  for  a  century  we  have  cultivated  "peace  and  har- 
mony with  all",  "diffusing  and  diversifying  by  gentle 
means  the  streams  of  commerce,  but  forcing  nothing"  ?  In 
a  word,  why  substitute  a  state  of  war  for  a  state  of  peace? 
Why  quit  a  commanding  position  to  stand  upon  lower 
ground  ? 

Dr.  Gladden  abhors  what  he  regards  the  "immoral" 
policy  of  national  self-interest.  In  this  he  is  in  practical 
accord  with  the  jingoes.  They  do  hold  to  a  self-interest, 
but  it  has  nothing  national  about  it.  W^hile  no  one  will 
accuse  him  of  sharing  any  such  interest,  he  and  they  agree 
in  being  impatient  with  those  who  hold  that  national  self- 
interest,  coupled  with  due  regard  for  the  rights  of  others, 
should  always  control  national  action. 

Our  government  was  formed  "fo  establish  justice j  pro- 
vide for  the  common  defence,  promote  the  general  welfare 
and  secure  the  blessings  of  liberty  to  ourselves  and  our 

197 


ESSAYS  AND  ADDRESSES 

posterity."  Its  duty  lies  entirely  within  these  purposes. 
American  civilization  has  substituted  a  state  of  peace  for 
a  state  of  war.  Its  fundamental  idea  is  that  the  govern- 
ment exists  for  the  people,  not  the  people  for  the  gov- 
ernment. From  this  it  follows  that  the  nation  can  have 
no  interest  or  duty  apart  from  the  people's  welfare;  that 
no  question  of  national  honor  or  dignity  can  properly 
arise  which  is  not  directly  related  to  their  material  or  moral 
well  being ;  and  that  it  is  the  great  end  of  their  government 
to  maintain  justice  and  peace,  so  that  nothing  shall  inter- 
fere with  their  fundamental  right  to  life,  liberty,  and  the 
pursuit  of  happiness. 

The  achievement  by  the  United  States  of  a  position  to 
command  permanent  peace,  the  opportunity  for  the  steady 
pursuit  by  an  entire  people  of  their  wonted  avocations 
over  a  vast  area,  is  the  noblest  triumph  of  civilization.  The 
possibility  that  this  unique  position  will  be  so  used  by  us 
as  to  lead  the  race  to  abandon  militarism  and  make  of 
the  entire  world  an  arena  for  the  cultivation  of  the  arts  of 
peace  is  to-day  our  most  splendid  vision. 

Our  jingoes  and  crusaders  alike  make  a  mistake  in  their 
impatience  with  those  who  would  conserve  the  vast  material 
interests  of  the  people,  and  who  (having  some  sense  of 
proportion)  would  count  the  cost  even  of  empire,  whether 
for  "philanthropy"  or  "piracy".  Our  civilization  rests 
upon  a  vast  system  of  trade  and  commerce.  This  founda- 
tion supports  not  only  our  material  but  moral  well  being. 
Indeed,  only  through  the  achievement  of  something  above 
mere  existence  can  an  entire  people  hope  to  engage  in 
cultivating  the  arts  of  life.    Their  largest  possible  employ- 

198 


NATIONAL   SELF-INTEREST 

ment  in  productive  occupations  is  the  surest  guaranty  that 
they  will  also  cultivate  the  things  of  the  spirit.  The  greater 
and  more  continuous  their  prosperity,  the  more  certain 
are  they  by  voluntary  combination  and  individual  action 
to  extend  the  blessings  of  education,  liberty,  and  justice, 
to  their  weaker  neighbors. 

Government  is  not  primarily  organized  for  philan- 
thropy, much  less  to  educate  and  give  liberty  to  foreign 
peoples.  To  secure  to  its  own  people  the  blessings  of 
liberty,  to  obtain  for  them  opportunity  to  pursue  without 
interruption  their  wonted  avocations,  to  conserve  their 
vast  material  interests  by  administering  justice  at  home 
and  cultivating  peace  and  harmony  with  all  the  world,  has 
become  the  end  of  government.  It  has  long  been  the 
glory  of  America  that  we  are  free  from  the  military  bur- 
dens which  have  so  long  rested  with  crushing  weight  upon 
the  nations  of  Europe.  For  the  moment,  forgetting 
Washington's  vision  of  a  national  life  that  shall  impress 
the  imagination  of  the  world  by  a  spectacle  of  peace,  lib- 
erty, and  prosperity,  we  have  been  brought  to  consider 
the  surrender  of  our  unique  position,  to  inquire  whether 
there  is  not  something  nobler  in  national  life  than  may  be 
realized  from  the  cultivation  of  the  arts  of  peace. 

The  assumption  that  we  have  heretofore  wholly  ignored 
our  national  duties  to  weaker  peoples,  cannot  be  admitted. 
We  owe  and  have  always  performed  important  duties  to 
such  peoples.  A  growing  consciousness  of  the  solidarity  of 
the  race  should  lead  us  to  hesitate  to  use  our  superior  force 
against  weaker  peoples  even  for  what  we  deem  their  own 
good.    No  lover  of  public  order,  whatever  his  regard  for 

199 


ESSAYS  AND  ADDRESSES 

the  Cubans,  rejoices  to-day  to  see  Spain  under  martial  law. 
We  may  still  seriously  consider  whether  we  shall  not  con- 
tinue to  discharge  at  least  our  usual  duties  by  cultivating 
"peace  and  harmony  with  all"  the  world  and  diffusing  by 
gentle  means  the  streams  of  our  influence,  "but  forcing 
nothing." 

Our  choice  does  not  lie  between  a  national  self-interest 
which  ignores  all  moral  obligations  to  others,  and  a  policy 
that  would  steadily  enforce  such  obligations  by  the  war- 
ship and  the  bayonet,  as  Dr.  Gladden  assumes.  It  does 
he  between  an  opportunity  to  lead  the  world  voluntarily 
to  accept  the  blessings  of  liberty  and  peace,  and  a  crusade 
to  extend  these  blessings  vi  et  armis. 

Mr.  Justice  Bradley,  in  "The  Civil  Rights  Cases," 
points  out  that  there  must  be  some  stage  in  the  progress 
of  the  elevation  of  the  negro  "when  he  takes  the  rank  of 
a  mere  citizen,  and  ceases  to  be  the  special  favorite  of  the 
laws."  Under  republican  institutions  there  is  place  only 
for  "mere  citizens."  We  can  offer  no  asylum  beneath  the 
American  flag  either  for  "special  favorites  of  the  laws" 
or  national  wards.  A  nation  which  is  committed  to  the 
proposition  that  all  men  are  of  inalienable  right  equal 
before  the  law,  can  make  no  provision  within  its  jurisdic- 
tion for  subject  peoples.  Indeed,  democracy  can  know 
no  subjects  but  only  citizens.  Taxation  without  represen- 
tation is  still  tyranny.  Government  by  force  is  still  despot- 
ism. Force,  even  when  touched  with  pliilanthropy,  cannot 
be  employed  as  a  chief  instrument  of  free  government. 


200 


AMERICAN   IDEALS* 

rr^HE  visions  of  democracy  are  the  ideals  of  America. 
These  ideals,  though  yet  far  from  full  realization, 
have  determined  what  is  distinctive  in  our  past.  They 
alone  give  promise  to  our  future. 

We  have  too  long  regarded  democracy  merely  as  a 
method  of  government,  simply  as  an  alternative  to  abso- 
lute government  in  its  varied  forms.  The  desire  for 
public  order  has  led  us  to  look  to  democracy  as  but  a 
means  to  greater  stability  in  political  organization  with 
better  protection  of  life  and  property.  We  have  endeav- 
ored to  modify  a  static  social  order  by  giving  it  a  somewhat 
broader  base  with  increased  powers  of  resistance.  We 
have  sought,  by  adding  to  its  participants,  to  make  gov- 
ernment stable  and  public  order  an  achievement.  Thus 
we  have  partial!}^  realized  something  of  liberty. 

Democracy  is  more  than  a  method  of  government.  It 
seeks  to  destroy,  not  to  occupy,  the  thrones  of  absolutism. 
It  abhors  all  efforts  to  establish  a  static  social  order.  It 
refuses  to  come  to  any  sort  of  terms  with  external  authority 
of  whatever  form  or  pretended  source. 

It  is  the  aim  of  democracy  to  substitute  inherent  for 
external  authority.  It  seeks  to  supplant  a  static  by  a 
dynamic  social  order.     It  invites  from  bondage  to  the 

*  During  his  last  days  Mr.  Smith  revised  the  first  eleven  paragraphs 
of  the  present  paper,  but  his  strength  failed  at  that  point.  The  remain- 
der of  the  article  follows  the  earlier  draft. 

201 


ESSAYS  AND  ADDRESSES 

open  air.  Absolutism  meant  finality.  Democracy  means 
life. 

The  exercise  of  power  was  the  aim  of  absolutism.  The 
possessors  of  power  privately  owned  the  state.  They 
exploited  its  resources  in  behalf  of  privilege.  The  cen- 
tralization of  power  and  influence  in  the  absolute  monarchs 
is  thus  expressed  by  Emerson,  speaking  of  Napoleon:  "A 
man  of  Napoleon's  stamp  almost  ceases  to  have  a  private 
speech  and  opinion.  He  is  so  largely  receptive,  and  is  so 
placed,  that  he  comes  to  be  a  bureau  for  all  the  intelhgence, 
wit,  and  power  of  the  age  and  country.  He  gains  the 
battle ;  he  makes  the  code ;  he  makes  the  system  of  weights 
and  measures;  he  levels  the  Alps;  he  builds  the  road." 

Even  yet  the  titular  successor  of  William  of  Normandy 
is  suffered  in  democratic  England  to  speak  in  formal  state 
papers  of  "my  army,"  "my  navy,"  "my  loyal  subjects," 
"my  relations  with  foreign  powers."  Though  successive 
waves  of  democracy  have  swept  over  the  modem  world, 
an  age  rich  in  achievement  is  widely  given  the  name  of  a 
person  of  moderate  capacity  and  common  attainments 
who  long  chanced  to  occupy  what  was  once  a  throne,  the 
possessor  of  the  mere  shadow  of  a  departed  authority. 

The  sway  of  liberty  is  the  aim  of  democracy.  Under 
the  democratic  regime  the  commonwealth  is  the  sum  total 
of  all  who  compose  it.  The  State  is  only  a  means.  The 
public  authority  is  an  instrument  which  none  may  possess 
and  none  may  use  save  to  promote  the  general  welfare. 
Social  order  is  cooperation.  It  rejects  force  to  find  a 
firmer  basis  in  the  concurrence  of  free  wills. 

Democracy  is  inclusive.     Government  is  but  one  of  its 

202 


AMERICAN  IDEALS 

incidents.    It  sets  the  scene  for  all  of  man's  activities.    It 
gives  to  his  life  both  meaning  and  opportunity. 

A  vision  of  equality  of  rights  v^^as  the  inspiration  of  our 
national  life.  The  immortal  declaration  that  all  men  are 
created  equal  —  that  they  are  endowed  by  their  Creator 
with  certain  inalienable  rights,  among  which  are  life,  lib- 
erty, and  the  pursuit  of  happiness  —  fitly  expressed  the 
ideal  of  democracy.  We  have  striven  as  a  nation  to  realize 
this  ideal. 

The  Constitution  created  a  national  government  to 
establish  and  maintain  equality  of  personal  rights.  To 
this  end,  it  commands  that  commerce  be  free  and  its  neces- 
sary regulations  uniform;  that  all  duties,  imposts,  and 
excises  be  uniform;  that  all  shall  enjoy  the  privilege  of 
the  writ  of  habeas  corpus  and  be  alike  protected  from  bills 
of  attainder  and  ex  post  facto  laws;  that  the  citizens  of 
each  State  shall  enjoy  all  the  privileges  and  immunities  of 
citizens  in  the  several  States ;  and  that  none  shall  be  raised 
above  the  rank  of  mere  citizens. 

Such  was  the  constitution  as  adopted.  It  contemplated 
a  government  of  uniform  laws,  representative  of  citizens 
possessing  equal  rights.  Even  these  guarantees  were 
regarded  inadequate.  The  victors  in  a  struggle  of  a  thou- 
sand years  against  arbitrary  power  were  not  willing  to 
leave  anything  to  implication.  The  people  willed  that  the 
results  of  that  struggle  should  be  embodied  in  their  fun- 
damental law.  Thus  the  Bill  of  Rights  was  added  by 
amendment. 

Still  the  ideals  of  equality  and  of  government  by  con- 
sent were  but  imperfectly  realized.     Human  slavery,  a 

203 


ESSAYS  AND  ADDRESSES 

monstrous  anachronism,  survived  to  give  the  lie  to  our  fair 
professions  of  equality.  A  people  that  had  renounced 
the  institutions  of  king  and  nobility  could  not  long  look 
upon  slavery  without  moral  disquietude.  Having  escaped 
an  aristocracy,  they  could  not  long  tolerate  slavery.  The 
noble  vision  of  equality  of  rights  vouchsafed  to  the  fathers 
inspired  their  children  to  strive  for  its  realization.  The 
Revolution  bears  witness  to  what  the  fathers  dared  that 
they  might  set  up  the  ideal  of  equahty.  The  mighty 
tragedy  of  civil  war  forever  records  what  their  sons  suf- 
fered in  striving  to  realize  that  ideal. 

The  revolutionists  at  the  outset  declared  their  splendid 
vision  of  equality  of  rights.  In  the  hour  of  triumph  they 
paused  to  set  up  a  tabernacle  to  liberty,  to  record  in  the 
people^s  grant  of  power  to  a  government  expressive  of 
their  authority  the  personal  rights  already  won. 

The  Constitution  of  the  fathers  established  the  equality 
of  white  men.  The  great  charter  of  liberty,  as  it  came 
from  the  furnace  of  civil  war,  proclaimed  equality  for  all 
men  irrespective  of  race  or  color.  Thus  equality  of  rights, 
the  ideal  of  the  Declaration,  became  the  achievement  of 
the  Constitution. 

That  no  victory  in  the  struggle  for  lofty  ideals,  however 
complete,  can  be  final  is  demonstrated  anew  by  the  events 
of  recent  years.  It  now  appears  that  even  the  tremendous 
triumph  that  marks  the  close  of  the  Civil  War  was  but  a 
step  forward.  To  each  generation  is  given  the  opportunity 
to  contribute  towards  the  realization  of  the  end  proposed. 

The  victors  of  186.5  thought  it  enough  to  embody  in  the 
Constitution  the  doctrine  of  equality  of  rights  for  all  men 

204 


AMERICAN  IDEALS 

irrespective  of  race  or  possessions.  We  now  realize  that 
although  this  was  well,  and  possibly  all  that  was  then  prac- 
ticable, it  was  by  no  means  final.  The  movement,  begun 
by  the  adoption  of  the  Constitution  and  continued  in 
unbroken  progress  in  its  amendment,  has  been  by  us  inter- 
rupted. Those  who  now  represent  us  do  not  interpret  the 
Constitution  in  the  terms  of  liberty.  The  President  and 
the  Congress  of  the  United  States  have  assumed  and  now 
exercise  absolute  power.  They  to-day  govern  millions  of 
men  without  consent.  Americans,  born  and  bred  in  the 
faith  that  taxation  without  representation  is  tyranny,  sit 
at  a  table  in  Manila  and  make  what  they  are  pleased  to 
call  "laws"  imposing  taxes  upon  an  unwilling  and  unrep- 
resented people.  Men,  chosen  to  represent  and  act  for  us 
in  pursuance  of  a  written  Constitution,  exercise  at  Wash- 
ington powers  outside  and  in  disregard  of  its  limitations. 
The  Supreme  Court  of  the  United  States,  seeking  warrant 
for  this  assumption  of  arbitrary  power,  has  restricted  the 
application  of  the  Bill  of  Rights  to  the  States.  Thus  the 
rights  that  we  had  supposed  pertain  to  men  as  men  under 
the  Constitution  have  become  merely  a  matter  of  locality. 
The  self-evident  truths  of  the  Declaration  are  self-evident 
only  within  State  lines.  The  will  of  the  President  and 
the  Congress,  not  the  Constitution,  is  the  supreme  law 
within  the  territories  and  islands  of  the  United  States. 

True,  the  authors  of  these  startling  innovations  make 
loud  professions  of  a  benevolent  design.  The  President, 
in  creating  by  his  ukase  the  Philippine  Commission,  con- 
ferred upon  it  "that  part  of  the  powers  of  government 
which  is  legislative  in  character"  and  directed  it,  "for 

205 


ESSAYS  AND  ADDRESSES 

the  sake  of  the  hberty  and  happiness"  of  the  people  of  the 
islands,  to  observe  an  expurgated  version  of  the  Bill  of 
Rights  by  him  set  forth  in  his  letter  of  instructions.  The 
Secretary  of  War,  in  his  annual  report  for  1899,  said: 

I  assume  .  .  .  that  the  people  of  the  islands  have 
no  right  to  have  them  treated  as  States,  or  to  have  them 
treated  as  the  territories  previously  held  by  the  United 
States  have  been  treated,  or  to  assert  a  legal  right  under 
the  provisions  of  the  Constitution  ...  or  to  assert 
against  the  United  States  any  legal  right  vrhatever  not 
found  in  the  treaty.  .  .  .  The  people  of  the  ceded 
islands  have  acquired  a  moral  right  to  be  treated  by  the 
United  States  in  accordance  with  the  underlying  prin- 
ciples of  justice  and  freedom,  which  we  have  declared  in 
our  Constitution. 

The  adoption  of  doctrines  so  destructive  of  American 
ideals  led  ex- President  Harrison  just  before  his  death 
to  enter  a  solemn  protest.  In  his  address  to  the  students 
of  the  University  of  Michigan  he  said : 

Our  fathers  were  not  content  to  hold  these  priceless 
gifts  under  a  revocable  license.  They  accounted  that  to 
hold  these  things  upon  the  tenure  of  another  man's  benev- 
olence was  not  to  hold  them  at  all.  Their  battle  was  for 
rights,  not  privileges  —  for  a  constitution,  not  a  letter  of 
instructions. 

The  man  whose  protection  from  wrong  rests  wholly 
upon  the  benevolence  of  another  man  or  of  a  congress,  is 
a  slave  —  a  man  without  rights. 

We  are  bound  to  believe  that  appeals  like  this  to  what 
is  fundamental  in  American  ideals  and  in  human  nature 
itself  will  be  heeded;  that  we  shall  again  respond  to  the 
inspiration  of  our  history;  and  that  we  may  then  again  on 
patriotic  occasions  freely  refer  to  the  Declaration  of  Inde- 

206 


AMERICAN  IDEALS 

pendence,  the  Constitution  of  the  United  States,  and  the 
teachings  of  George  Washington  and  Abraham  Lincoln, 
without  violating  the  proprieties.  We  shall  not  long  per- 
mit any  man,  or  group  of  men,  to  quarry  out  of  the  Con- 
stitution rights  for  gracious  bestowal  on  the  people  of  our 
territories  and  islands.  We  shall  permit  no  man,  or  group 
of  men,  to  make  of  the  inalienable  rights  of  free  men  a 
mere  matter  of  gift  or  of  locality.  We  shall  allow  no  man, 
or  group  of  men,  to  limit  the  application  of  the  Bill  of 
Rights,  or  to  deny  equality  of  rights  anywhere  within  the 
jurisdiction  of  the  United  States.  The  judicial  invention 
of  "lands  appurtenant  to  the  United  States"  inhabited  by 
subjects  without  rights  is  abhorrent  to  American  ideals. 
We  cannot  abandon  our  ideals;  we  must  decline  to  hold 
any  territory  that  may  not  be  governed  by  American 
methods.  Despotic  power  and  delegated  authority  are 
to-day  exercised  by  American  officials  at  Washington. 
These  forces  are  as  old  as  history.  They  cannot  long 
exist  together.    Our  choice  lies  between  them. 

Absolutism  sought  by  force  to  maintain  an  artificial 
public  order.  Democracy  seeks  by  cooperation  to  secure 
a  genuine  public  order.  Absolutism  produced  a  political 
and  social  fabric  of  narrow  base  and  unstable  equilibrium. 
Democracy  has  created  an  inclusive  political  and  social 
fabric  of  superior  powers  of  resistance.  It  was  the  aim  of 
absolutism,  as  we  have  seen,  to  exercise  political  power  as 
an  end.  It  is  the  aim  of  democracy  to  exercise  power  only 
as  a  means.  The  practical  significance  of  this  distinction 
is  often  overlooked.  The  governmental  agents  of  democ- 
racy have  too  often  assumed  that  the  exercise  of  power 

207 


ESSAYS  AND  ADDRESSES 

is  the  end  of  democratic,  as  well  as  of  absolute,  government. 
Permanent  political  parties  having  power  as  their  end, 
with  but  an  incidental  obligation  to  solve  political  prob- 
lems some  way  or  other  as  they  arise,  have  succeeded  to 
the  role  so  long  played  by  monarch  and  aristocrat.  Hence, 
thus  far  democracy  has  partly  failed  of  its  aim.  It  is  yet 
not  unlike  the  regime  which  it  succeeded,  permanent  par- 
ties having  taken  the  place  of  the  former  possessors  of 
pohtical  power. 

It  has  been  truly  said  that  the  essence  of  monarchy  is 
not  so  much  the  presence  of  the  king  as  the  absence  of  the 
people  in  all  the  important  transactions  of  government. 
It  is  the  essence  of  American  institutions  that  our  govern- 
ments are  but  agencies  whose  sole  function  it  is  to  express 
the  will  of  the  people  whom  they  represent.  In  so  far 
as  they  fail  in  this,  they  fall  short  of  the  American  ideal 
of  government.  Here  again  our  ideal  is  in  advance  of  our 
practice.  This  does  not  require  a  lowering  of  our  ideal; 
it  calls  for  an  improvement  in  our  practice. 

It  is  ever  to  be  remembered  that  American  democracy 
has  set  for  itself  a  tremendous  task.  It  assimaes  that  the 
people  constitute  the  sole  source  of  authority;  that  the 
several  governments  of  their  creation  are  but  expressions 
of  that  authority.  Hence,  government  with  us  rests  on 
public  opinion,  not  on  force.  It  exists  solely  to  promote 
the  public  good,  not  that  of  a  privileged  class  or  order. 
To  succeed,  it  must  be  the  resultant  of  a  wide  coopera- 
tion. It  may  exercise  only  such  authority  as  is  conferred 
upon  it  by  those  to  be  governed. 

A  government  resting  on  force  is  like  the  centurion 

208 


AMERICAN  IDEALS 

whose  servant  Jesus  healed:  "For  I  am  a  man  under 
authority,  having  soldiers  under  me ;  and  I  say  to  this  man, 
Go,  and  he  goeth;  and  to  another.  Come,  and  he  cometh; 
and  to  my  servant.  Do  this,  and  he  doeth  it."  The  task 
of  a  government  thus  able  to  command  instant  and  unques- 
tioning obedience  differs  widely  from  that  of  a  representa- 
tive government,  resting  on  public  opinion.  The  one 
stands  for  a  militant  organization  of  society.  The  other 
is  the  resultant  of  a  cooperative  social  order.  The  one 
acts  quickly  and  decisively.  The  other  works  out  its  results 
by  slow  processes.  The  task  of  the  latter  is  vastly  the 
more  difficult;  but  its  results  when  obtained  are  more 
secure.  Its  superiority  over  the  former  is  the  superi- 
ority of  modern  democracy  over  the  military  monarchy  of 
feudalism. 

There  are  some  among  us  who  have  grown  impatient 
of  the  processes  by  which  government  by  discussion  works 
out  its  results.  They  want  the  government  to  be  "effi- 
cient"; that  is,  they  want  it  to  respond  quickly  to  their 
touch.  They  applaud  the  official  "who  does  things";  who 
acts  and  then  submits  for  approval,  not  the  original 
question  of  policy,  but  an  existing  status  of  his  own  crea- 
tion. They  want  franchises  and  contracts  and  canals 
while  they  wait,  with  precious  little  waiting  at  that. 

It  must  be  confessed  that  democratic  government  is 
not  "efficient"  in  the  sense  the  word  is  used  by  those 
whose  purposes  will  not  bear  discussion  and  who  want 
quick  and  decisive  action.  A  government  to  be  thus  effi- 
cient must  respond  to  the  touch  of  a  single  hand;  at  best 
it  can  act  for  but  few.    The  task  of  democratic  government 

209 


ESSAYS  AND  ADDRESSES 

is  to  act  for  all.  It  must  gather  up,  correlate,  and  finally 
express  the  wishes  of  many.  Those  through  whom  it  acts 
must  represent  and  express  the  ^vill  of  the  majority  of  the 
citizens.  To  be  effective,  it  must  strictly  observe  estab- 
lished precedents  and  pursue  authorized  methods  of  pro- 
cedure. In  matters  of  first  instance  or  grave  importance, 
it  must  consult  and  await  the  command  of  public  opinion. 
Short  cuts  are  open  to  private  government  by  one  man 
or  by  a  few  men.  A  government  of  the  people  must  follow 
the  beaten  path. 

A  government  resting  on  public  opinion  can  succeed 
only  by  methods  which  invite  and  permit  discussion. 
Hence  the  need  of  a  public  forum,  a  place  where  the  rep- 
resentatives of  the  electors  may  meet  to  discuss  and  trans- 
act the  public  business.  It  is  the  function  of  the  courts 
to  interpret  the  laws,  of  the  executive  to  execute  them; 
the  legislature  alone  can  make  laws  for,  that  is  declare 
the  policies  of,  a  self-governing  people.  Hence,  the  ten- 
dency to  abandon  the  legislature  to  special  interests,  and  to 
seek  relief  in  an  executive  dictatorship  backed  by  the 
negative  power  of  the  courts,  cannot  be  regarded  an 
advance.  It  is  a  retreat  by  those  who  are  too  indolent 
or  too  selfish  to  pay  the  price  of  representative  govern- 
ment. 

It  is  frequently  said  that  "democracy  is  on  trial." 
Some  even  assert  that  its  failure  is  foreshadowed  by  the 
condition  of  city  government  throughout  the  United 
States.  Those  whose  grasp  of  democratic  institutions  is 
thus  tentative,  living  as  they  do  under  their  sway,  prob- 
ably have  not  considered  an  alternative.     A  shght  effort 

210 


AMERICAN  IDEALS 

to  find  one  would  convince  him  who  is  most  dissatisfied 
with  existing  conditions  under  democratic  government 
that  there  is  no  alternative. 

Mr.  Ostrogorski,  in  his  great  work  on  "Democracy 
and  the  Organization  of  Political  Parties,"  after  stating 
that  "Hitherto  the  victorious  struggle  which  democracy 
has  carried  on  in  the  world  has  been  mainly,  and  neces- 
sarily, a  struggle  for  material  liberty ;  moral  liberty,  which 
consists  in  thinking  and  acting  as  free  reason  dictates, 
has  yet  to  be  achieved  by  it,"  says : 

Through  the  mere  fact  of  having  realized  material  lib- 
erty, democracy  has  given  more  happiness  to  the  nations 
than  the  other  regimes  had  ever  afforded  them;  "the  great- 
est happiness  of  the  greatest  number"  has  never  been  less 
distant  from  its  realization  than  in  the  present  da}^  .  .  . 
The  disorders  of  which  democratic  government  has  pre- 
sented or  continues  to  present  the  spectacle  in  certain 
countries  are  paralleled  or  equalled,  to  say  the  least  of  it, 
by  the  experience  of  the  anterior  regimes;  but  the  latter 
had  no  political  liberty  to  compensate  them  and  to  cure 
their  ills,  and  they  have  passed  away.  Democracj^  has 
brought  with  it  liberty,  and  it  has  renewed  the  life  of 
societies. 

These  passages  from  one  who  has  sounded  the  resources 
of  despotism,  should  admonish  some  among  us  to  talk  less 
glibly  of  the  failure  of  democratic  government.  We  are 
committed  to  democracy.  We  are  absolutely  without 
other  resource.  We  have  no  reserve  of  intelligence  or 
virtue  on  which  to  draw. 

Who  among  us  may  pass  judgment  against  democratic 
institutions  ?  Who  of  us  may  determine  that  the  others  are 
unworthy  to  participate  in  the  government  of  their  coun- 

211 


ESSAYS  AND  ADDRESSES 

try?  By  what  warrant  shall  some,  or  one,  assume  to 
govern  all  ? 

True,  all  do  not  and  cannot  equally  contrihute  to  good 
government.  The  ballot  is  something  more  than  a  means 
to  an  altruistic  end;  it  is  a  weapon  of  defense.  In  the 
hands  of  the  weak,  it  is  a  means  of  protection  from  the 
aggressions  of  the  strong.  To-day,  our  chief  danger  is 
not  from  the  poor  and  the  ignorant.  American  liberty 
is  threatened  bj^  the  rich  and  cultured  scoundrels  who 
exercise  the  public  authority  for  their  own  ends.  Neither 
the  possession  of  riches  or  knowledge,  nor  both,  ever  made 
a  man  or  any  number  of  men  fit  to  exercise  despotic  author- 
ity over  other  men. 

We  have  seen  that  the  tests  of  efficient  government 
under  absolutism  and  democracy  are  not  the  same.  What 
may  be  termed  good  government  under  an  absolute  mon- 
arch or  privileged  class  would  be  bad  government  tested 
by  the  democratic  ideal.  Public  order,  resulting  from  effi- 
cient and  honest  administration,  is  an  important  but.  not 
the  supreme  test  of  good  government.  The  real  test 
involves  the  question  of  liberty.  As  Kossuth  said:  "No 
nation  can  remain  free  with  whom  freedom  is  a  privilege 
and  not  a  principle."  The  enjoyment  of  liberty  as  an 
inalienable  right  is  the  supreme  test  of  good  government. 
This  alone  concedes  to  every  individual  the  right  from 
which  flows  as  from  a  living  spring  all  other  rights. 
Under  any  form  of  government  life  and  property  may  be 
protected.  Only  where  there  is  liberty  is  opportunity 
secure.  That  government,  then,  is  good  under  which  all 
enjoy  liberty  with  opportunity  to  strive  for  better  con- 

212 


AMERICAN  IDEALS 

ditions,  opportunity  to  cooperate  to  secure  and  maintain 
public  order,  opportunity  for  each  to  work  out  his  destiny 
in  his  own  way. 

Good  government  is  not  something  to  be  once  achieved 
and  thereafter  merely  enjoyed.  It  is  not  to  be  won  by 
a  single  victory,  or  held  by  an  indefeasible  title  in  fee 
simple.  Good  government  is  not  a  result;  it  is  a  con- 
dition. It  is  not  an  achievement;  it  is  an  opportunity. 
When  one  approaches  a  great  mountain  he  usually  finds 
its  lofty  peak  buttressed  about  by  high  plateaus  and  lesser 
peaks,  with  its  sides  protected  by  jagged  rocks  and  slip- 
pery glaciers  and  descending  avalanches.  Again  and 
again,  as  he  strives  to  reach  the  summit,  he  sees  towering 
above  him  a  peak  which  appears  to  be  his  goal  only  to  find 
on  attaining  it  a  landmark  of  the  ascent.  So  with  the 
democratic  ideal  of  good  government;  democracy  creates 
conditions  giving  to  all  liberty  and  opportunity  to  strive 
for  what  they  deem  good,  to  cooperate  for  the  attainment 
of  their  ideal  of  social  order. 

It  is  worth  much,  as  we  strive  for  social  and  political 
order,  to  realize  that  we  are  not  required  to  complete  the 
task,  leaving  those  who  come  after  us  only  to  enjoy  the 
fruits  of  our  labors.  It  is  required  of  us,  if  we  would 
but  do  our  duty,  to  get  and  keep  the  trend  right,  taking 
some  positive  steps  towards  the  reahzation  of  our  ideals. 
For  example,  we  are  just  beginning  to  realize  that  our 
municipal  governments,  acting  as  they  do  as  agencies  of 
the  State,  are  undemocratic;  that,  unless  our  rapidly  in- 
creasing urban  populations  are  to  be  denied  representative 
government,  our  cities  must  be  made  democratic ;  and  that 

213 


ESSAYS  AND  ADDRESSES 

the  government  of  the  city  must  as  directly  represent  its 
people  as  the  government  of  the  State  represents  the  peo- 
ple of  the  State.  It  is  our  opportunity  and  our  duty, 
discerning  this  defect  in  our  organic  law,  to  seek  a  remedy. 
It  may  be  quite  beyond  our  powers  within  our  day  to 
estabhsh  throughout  the  country  genuine  municipal  self- 
government  ;  but  we  may  set  the  trend  right,  insuring  the 
ultimate  success  of  this  fundamental  reform.  To  discern 
the  needs  of  the  time  and  create  conditions  that  must  finally 
result  in  meeting  them  is  glory  enough  for  an  individual 
or  an  age. 

Lowell,  when  asked  by  Guizot  how  long  he  thought 
the  American  republic  would  endure,  at  once  replied:  "So 
long  as  the  ideals  of  the  men  who  founded  it  continue 
dominant."  It  is  the  glory  of  the  founders  that  they 
made  their  ideas  the  ideals  of  the  republic.  Through 
more  than  a  century  of  changing  vicissitudes  these  ideals 
have  inspired  and  dominated  our  national  life.  Yet' our 
performance  still  falls  short  of  our  professions  of  loyalty 
to  them.  Alike  in  Nation,  in  State,  and  municipality  the 
public  authority  is  largely  exercised  for  private  ends.  We 
permit,  almost  without  protest,  the  denial  of  equal  rights 
to  our  fellow  citizens  in  many  of  the  States.  We  deprive 
another  people  beyond  the  sea  of  the  liberty  which  is  the 
birthright  of  all  men.  It  is  not  enough  that  we  still  profess 
love  for  the  forms  of  free  institutions.  It  is  not  enough 
that  we  celebrate  the  anniversaries  of  Washington  and 
Lincoln.  If  a  noble  past  is  to  be  the  inspiration  of  noble 
days  to  come,  we  must  continue  to  carry  American  ideals 
into  American  action.    If  a  sturdy  loyalty  to  these  ideals 

214 


AMERICAN  IDEALS 

is  not  to  give  way  to  an  enervating  sentimentalism  in  re- 
spect to  them,  we  must  at  whatever  personal  cost  make 
them  live  in  all  the  activities  of  our  national  hfe.  If 
American  democracj'  is  to  fulfill  its  promise,  it  must 
cherish  its  ideals  as  the  very  essence  of  its  being. 

That  American  ideals  will  finally  triumph  over  all 
obstacles  we  cannot  permit  ourselves  to  doubt.  "It  is  the 
political  and  social  forms  anterior  to  democracy  which  are 
dead."  The  future  belongs  to  democracy.  It  alone  can 
furnish  a  basis  broad  enough  for  its  expanding  life.  It 
is  not  ours  to  win  its  final  victories.  It  is  for  us,  in  our 
day  and  generation,  to  keep  the  trend  right.  This  is  our 
task ;  this  is  our  opportunity. 


215 


ANTI  IMPERIALISM 


CONSTITUTIONAL    GOVERNMENT 
IMPERILED* 

Great  captains  with  their  guns  and  drums. 

Disturb  our  judgment  for  the  hour, 

But  at  last  silence  comes. 

—  Lowell. 

ri^HE  silence  has  come  in  which  but  the  echoes  of  the 
guns  and  drums  of  our  great  captains  remain.  The 
time  has  arrived  which  calls  for  the  exercise  of  judgment 
undisturbed  by  excitement  or  passion.  We  stand  face  to 
face  with  problems  which  require  prompt  solution.  Those 
who  represent  us,  with  sword  in  hand,  demand  of  millions  of 
people  but  just  escaped  from  one  foreign  oppressor,  hum- 
ble submission  and  blind  obedience.  Unconditional  sur- 
render and  unquestioning  acceptance  of  another  military 
authority  are  made  conditions  precedent  even  to  a  definite 
statement  of  our  purposes  in  respect  to  a  great  archipelago 
in  which  our  doubtful  interest  is  but  a  probable  quit-claim 
deed  of  a  title  by  force.  We  are  about  to  succeed  to  Spain's 
contested  title.  We  have  already,  at  least  for  the  pres- 
ent, succeeded  to  her  methods.  Whether  we  are  merely 
to  take  her  place  does  not  yet  appear.  The  President  only 
ventures  to  propose  "the  success  of  our  arms  and  the 
maintenance  of  our  own  honor,"  and  to  relegate  the  "whole 
subject"  of  "the  welfare  and  happiness  and  rights  of  the 
inhabitants  of  the  Philippine  Islands"  to  Congress,  which 
he  says  is  "the  voice,  the  conscience,  and  the  judgment 
*  Reprinted  from  "  Self  Culture,"  April,  1899. 

219 


ESSAYS  AND  ADDRESSES 

of  the  American  people."  This  want  of  a  definite  policy 
has  already  led  to  dire  results.  To  wait  until  the  proper 
time  comes  to  act  is  one  thing;  to  let  loose  the  dogs  of 
war  and  wait  for  a  progranmie  is  to  confess  that  we  are 
adrift. 

The  necessity,  the  wisdom,  even  the  justice,  of  our  war 
against  Spain  are  still  widely  doubted.  Whether  our 
interference  in  a  quarrel  that  was  not  ours,  whether  our 
breach  of  the  peace  of  the  world  after  Spain  had  conceded 
our  reasonable  demands,  can  be  justified,  depends  almost 
wholly  upon  our  execution  of  the  far  greater  task  that 
remains.  The  final  verdict  upon  our  action  will  depend 
on  its  results  rather  than  its  manner  or  occasion.  The 
problems  which  now  confront  us  involve  vastly  more  than 
a  few  petty  additions  to  our  trade,  or  even  the  welfare 
of  the  alien  peoples  of  some  remote  islands. 

The  fundamental  question  arises.  By  what  authority 
and  under  what  restraints  may  Congress  undertake  to  rule 
subject  peoples  ?  The  acquisition  of  distant  islands, 
already  fully  occupied  by  half-civilized  races  wholly  unfit 
for  self-government,  and  having  a  climate  in  which  white 
men  cannot  or  will  not  live,  is  but  an  incident  in  an  estab- 
lished national  policy  or  a  vital  departure  from  that  policy. 
If  the  former,  we  have  but  promptly  to  admit  these  islands 
to  statehood,  as  we  have  done  with  all  earlier  acquisitions 
of  territory  of  sufficient  population.  If  the  latter,  we 
cannot  too  soon  determine  to  what  extent  we  may  assume 
to  govern  or  share  in  governing  their  people  without  the 
exercise  by  Congress  of  self -assumed  and  arbitrary  powers. 
The  Constitution  created  a  nation  of  States,  "an  indis- 

220 


CONSTITUTIONAL   GOVERNMENT 

soluble  union  of  indestructible  States."  It  called  into  being 
a  "United  States  of  America,"  not  a  "United  States  of 
America  and  Asia."  It  was  its  purpose  "to  form  a  more 
perfect  [not  a  less  perfect]  union  .  .  .  and  secure  the 
blessings  of  liberty  to  ourselves  and  our  posterity."  Every 
person  born  or  naturalized  within  the  Union  was  to  be  a 
citizen  of  the  nation  and  of  the  State  of  his  residence.  All 
the  people  of  the  nation  were  to  constitute  a  brotherhood 
of  citizens  having  equal  rights  before  the  law,  which 
might  not  be  denied  or  abridged  because  of  race  or  color. 
There  were  to  be  no  subjects,  but  only  citizens.  The  gov- 
ernment was  to  derive  its  powers  from  the  consent  of  the 
governed.  This  consent  was  to  be  manifested  by  some- 
thing more  than  mere  acquiescence.  It  contemplated  the 
active  participation  by  the  governed  in  a  government 
which  was  to  be  only  theirs,  and  which  they  would  alone 
control.  Congress  might  organize  territorial  governments 
for  the  administration  of  the  sparsely  settled  national  do- 
main outside  of  the  States;  but  the  territorial  form  of 
government  was  to  be  but  temporary  and  merely  prepara- 
tory to  statehood.  Such  was  our  scheme  of  popular 
government;  and  until  by  the  chances  of  aggressive  and 
almost  uncontested  warfare  we  blockaded  a  single  port  of 
a  distant  archipelago  inhabited  by  half-civilized  and 
savage  men,  there  was  none  among  us  to  wish  it  otherwise. 
The  question  now  is,  Can  these  islands  be  acquired 
without  their  becoming  the  property,  the  territory,  of  the 
United  States?  If  such  territory,  they  will  at  once  be 
subject  to  our  Constitution  and  general  laws.  The  mo- 
ment  new    territory    is    incorporated    into    the    national 

221 


ESSAYS  AND  ADDRESSES 

domain  its  inhabitants,  without  naturahzation,  become 
citizens  of  the  United  States,  and  as  such  "entitled  to  all 
privileges  and  immunities  of  citizens  in  the  several  States." 
The  Supreme  Court  has  held  that  "the  provisions  of  the 
Constitution  relating  to  trials  by  jury  for  crimes  and  to 
criminal  prosecutions  apply  to  the  territories  of  the  United 
States";*  that  Congress,  in  legislating  for  the  territories 
and  District  of  Columbia,  is  subject  to  those  fundamental 
limitations  in  favor  of  personal  rights  which  are  formu- 
lated in  the  Constitution  and  its  amendments;!  and  that  all 
citizens  of  the  United  States  have  "the  right  to  come  to 
the  seat  of  government,"  to  have  "free  access  to  its  sea- 
ports," and  to  pass  freely  from  one  part  of  the  country  to 
every  other  part.t  The  Supreme  Court  has  also,  within 
a  year, —  under  the  clause  of  the  Fourteenth  Amendment 
which  provides  that  "all  persons  born  or  naturalized  in 
the  United  States,  and  subject  to  the  jurisdiction  thereof, 
are  citizens  of  the  United  States  and  of  the  State  wherein 
they  reside," — held  that  American-born  Chinamen  of  alien 
parentage  are  citizens  and  free  from  the  provisions  of  the 
exclusion  acts  and  treaties;  also  that  Congress  has  no 
authority  "to  restrict  the  effect  of  birth,  declared  by  the 
Constitution  to  constitute  a  sufficient  and  complete  right  of 
citizenship.""     Section  1992  of  the  Revised  Statutes  of 

*  Thompson  vs. Utah,  170  U.  S.  343,  346;  Callan  vs.  Wilson,  127 
U.  S.  540,  550. 

t  Mormon  Church  vs.  United  States,  136  U.  S.  1;  McAlhster  vs. 
United  States,  141  U.  S.  174,  188;  American  Pubhshing  Society 
vs.  Fisher,  166  U.  S.  464,  466. 

X  Crandall  vs.  Nevada,  6  Wall.  U.  S.  35. 

II  United  States  vs.  Wong  Kim  Ark,  169  U.  S,  649,  703. 

222 


CONSTITUTIONAL   GOVERNMENT 

the  United  States,  passed  by  the  Congress  which  framed 
and  proposed  the  Fourteenth  Amendment,  provides  that 
"all  persons  born  in  the  United  States,  and  not  subject  to 
any  foreign  power,  excluding  Indians  not  taxed,  are  de- 
clared to  be  citizens  of  the  United  States."  This  does  not 
make  residence  in  a  State  a  condition  of  citizenship  of  the 
United  States.  As  it  was  framed  by  the  same  Congress  at 
the  same  time,  it  and  the  amendment  may  safely  be  as- 
sumed to  be  in  harmony. 

The  Supreme  Court  has  also  said : 

The  power  to  expand  the  territory  of  the  United 
States  by  the  admission  of  new  States  is  plainly 
given;  and,  in  the  construction  of  this  power  by 
all  the  departments  of  the  government,  it  has  been 
held  to  authorize  the  acquisition  of  territory  not  fit 
for  admission  at  the  time,  but  to  be  admitted  as  soon  as 
its  population  and  situation  would  entitle  it  to  admission. 
It  is  acquired  to  become  a  State,  and  not  to  be  held  as  a 
colony  and  governed  by  Congress  with  absolute  authority. 
.  Whatever  the  political  department  of  the  gov- 
ernment shall  recognize  as  within  the  limits  of  the  United 
States,  the  judicial  department  is  also  bound  to  recognize, 
and  to  administer  in  it  the  laws  of  the  United  States  so 
far  as  they  apply,  and  to  maintain  in  the  territory  the 
authority  and  rights  of  the  government ;  and  also  the  per- 
sonal rights  and  rights  of  property  of  individual  citizens, 
as  secured  by  the  Constitution.* 

The  same  court,  as  late  as  1884,  said:  "The  personal 
and  civil  rights  of  the  inhabitants  of  the  territories  are 
secured  to  them,  as  to  other  citizens,  by  the  principles  of 
constitutional  liberty  which  restrain  all  the  agencies  of 
government.  State  and  national;  their  political  rights  are 

*Dred  Scott  vs.  Sanford,  19  How.  393. 

228 


ESSAYS  AND  ADDRESSES 

franchises  which  they  hold  as  privileges  in  the  legislative 
discrettion  of  the  Congress  of  the  United  States."  * 

Here  lies  the  distinction.  Congress  possesses  the  same 
general  powers,  subject  to  the  same  limitations,  over  terri- 
tories and  their  people  as  it  exercises  over  the  States  and 
their  inhabitants.  In  addition  it  has  the  same  powers  in 
respect  to  the  local  affairs  of  the  territories,  subject  only 
to  the  same  constitutional  restraints  as  the  States  exercise 
over  their  local  affairs.  Congress  has  in  the  territories 
the  sum  of  national  and  local  legislative  powers,  subject 
to  the  hmitations  and  restraints  of  the  Constitution. 

The  Supreme  Court,  after  the  acquisition  of  California 
and  before  its  admission  as  a  State,  applied  to  it  the  con- 
stitutional provision  that  "all  duties,  imposts,  and  excises 
shall  be  uniform  throughout  the  United  States,"  and  said: 

By  the  ratification  of  the  treaty,  California  became  a 
part  of  the  United  States.  .  .  .  The  right  claimed  to 
land  foreign  goods  within  the  United  States  at  any  place 
out  of  a  collection  district,  if  allowed,  would  be  a  violation 
of  that  provision  of  the  Constitution  which  enjoins  that 
all  duties,  imposts,  and  excises  shall  be  uniform  throughout 
the  United  States.  Indeed,  it  must  be  very  clear  that  no 
such  right  exists,  and  that  there  wa^  nothing  in  the  con- 
dition of  California  to  exempt  importers  of  foreign  goods 
into  it  from  the  payment  of  the  same  duties  which  were 
chargeable  in  the  other  ports  of  the  United  States.t 

The  Supreme  Court  has  further  said: 

It  cannot  be  admitted  that  the  king  of  Spain  could, 
by  treaty  or  otherwise,  impart  to  the  United  States  any 

*  Murphy  vs.  Ramsey,  114  U.  S.  15,  citing  Dred  Scott  vs.  Sanford 
with  approval;  Mormon  Church  vs.  United  States,  136  U.  S.  1. 
t  Cross  vs.  Harrison,  16  How.  198. 

224 


CONSTITUTIONAL   GOVERNMENT 

of  his  royal  prerogative ;  and  much  less  can  it  be  admitted 
that  they  have  capacity  to  receive  or  power  to  exercise 
them.  Every  nation  acquiring  territory,  by  treaty  or 
otherwise,  must  hold  it  subject  to  the  Constitution  and  laws 
of  its  own  government.* 

The  constitutional  power  of  Congress  to  "make  all 
needful  rules  and  regulations  respecting  the  territory  or 
other  property  of  the  United  States"  thus  appears  to  have 
important  limitations.  If  the  Constitution  is  to  remain  the 
supreme  law  of  the  land,  if  its  historic  and  natural  inter- 
pretation is  still  to  be  given  effect,  certain  definite 
conclusions  are  irresistible.  Among  them  are  these:  All 
islands  acquired  through  the  war  against  Spain,  and  made 
part  of  the  territory  of  the  United  States,  will  be  subject 
to  its  Constitution  and  general  laws.  Their  inhabitants  — 
at  least  those  hereafter  born  —  will  be  citizens  of  the 
United  States  and  of  the  several  States  in  which  they 
choose  to  reside.  As  citizens  they  will  come  and  go  at 
will  throughout  the  entire  country.  Their  government 
by  Congress  will  be  subject  to  the  fundamental  limitations 
in  favor  of  personal  rights  which  are  formulated  in  the 
Constitution  and  its  amendments.  By  high  tariff  imposts 
under  the  constitutional  requirement  of  uniformity,  we 
shall  grind  their  people  into  the  dust  as  Spain  has  done 
before  us. 

These  conclusions  follow,  as  the  night  the  day,  from  the 
interpretation  of  the  Constitution  of  a  century  by  the  high- 
est judicial  authority.  This  interpretation  was  directly  due 
and  incident  to  the  enormous  acquisitions  of  territory  which 

*  Pollard  vs.  Hogan,  3  How.  312. 

225 


ESSAYS  AND  ADDRESSES 

are  now  so  much  relied  on  as  a  justification  for  acquiring 
the  Spanish  islands.  Yet  there  are  those  who,  while  pro- 
testing that  the  acquisition  of  these  islands  is  but  an 
incident  of  an  estabhshed  policy,  deny  these  conclusions. 
Indeed,  a  new  school  of  constitutional  interpretation  is 
arising  among  us  to  meet  the  exigencies  of  what  is  in  fact  a 
novel  national  adventure.  Professor  Langdell  of  Harvard 
and  Dean  Judson  of  the  University  of  Chicago  have  al- 
ready supplied  a  construction  of  the  Constitution  calcu- 
lated to  enable  those  in  authority  to  do  in  the  Spanish 
islands  whatever  the  ground  reports  that  anybody  else  de- 
sires done.  It  is  not  easy  for  a  lawyer  seriously  to  regard  a 
constitutional  interpretation  based  on  an  express  denial  of 
a  conclusion  of  Chief  Justice  Marshall.  That  the  new  doc- 
trine ignores  a  long  line  of  decisions  by  the  Supreme  Court 
of  the  United  States  but  adds  to  the  difficulty.  However, 
the  novel  doctrine  announced  as  the  result  of  these 
academic  reexaminations  of  the  Constitution  calls  for 
serious  inquiry.  If  sound,  it  provides  a  plain  and  easy 
road  to  the  destruction  of  constitutional  government. 

Professor  Langdell,*  as  the  result  of  his  inquiry  into 
the  meaning  of  the  term  "United  States,"  cheerfully  over- 
rules the  conclusion  of  Chief  Justice  Marshall  that  "it  is 
the  name  given  to  our  great  republic,  which  is  composed 
of  States  and  territories,"  the  District  of  Columbia  and 
the  territories  being  "not  less  within  the  United  States 
than  Maryland  or  Pennsylvania."  He  also  disregards  the 
line  of  decisions  to  the  same  effect  above  cited,  and  finds 
that  the  term  "United  States,"  when  used  to  designate 

*"  Harvard  Law  Review"  for  February,  1899. 

226 


CONSTITUTIONAL   GOVERNMENT 

extent  of  territory,  means  only  "the  States  in  the  aggre- 
gate," and  that  "the  Constitution  of  the  United  States 
does  not  extend  beyond  the  limits  of  the  States."  He 
concludes  that  the  United  States  "comprise  the  territory 
of  the  forty-five  States,  and  no  more";  that  "it  does  not 
follow,  because  a  department  of  the  government  is  created 
and  organized  by  the  Constitution  with  reference  solely  to 
a  given  territory,  that  therefore  the  power  of  that  depart- 
ment and  its  sphere  of  action  are  limited  to  that  territory"; 
that  the  judicial  department  of  the  government  of  the 
United  States  is  so  limited,  but  not  so  the  legislative  and 
executive  departments;  and  that  "the  legislative  and 
executive  departments  are  sovereign  in  their  nature,  and 
therefore  their  power  and  sphere  of  action  are  co-extensive 
with  the  sovereignty  of  the  United  States,  of  which 
sovereignty  they  constitute  the  vital  part."  It  follows 
that  "in  the  legislative  and  executive  departments  is  vested 
all  the  sovereign  power  in  our  new  territories  that  has 
been  delegated  by  the  people."  Professor  Langdell  also 
concludes  that  this  power  is  without  other  restraint  than 
the  clause  of  the  Thirteenth  Amendment,  which  forbids 
slavery  or  involuntary  servitude,  "except  as  a  punishment 
for  crime,  whereof  the  party  shall  have  been  duly  con- 
victed."* Dean  Judsont  having  reached  quite  similar 
conclusions,  they  may  be  assumed  fairly  to  represent  the 
trend  of  thought  among  such  of  those  who  favor  the  re- 
tention of  the  Spanish  islands  as  have  yet  seriously  tried 

*  There  are,  by  the  way,   large  judicial  possibilities  in    the    words 
duly  convicted." 

t  "Review  of  Reviews"  for  January,  1899. 

227 


ESSAYS  AND  ADDRESSES 

to  meet  the  grave  difficulties  of  a  vital  change  in  our  na- 
tional policy. 

Thus  is  found  an  assumed  basis  for  legislative  and 
executive  absolutism,  free  from  a  judicial  restraint  which 
have  heretofore  held  both  Congress  and  the  President  to 
the  observance  of  the  Constitution  throughout  the  entire 
territory  over  which  the  sovereignty  of  the  United  States 
has  extended.  While  the  Supreme  Court  may  be  relied 
upon  to  make  short  work  of  the  extraordinary  proposition 
that  its  jurisdiction  extends  only  to  the  territory  of  the 
forty-five  States,  beyond  whose  limits  the  legislative  and 
executive  powers  are  without  restraint  except  as  to  slavery, 
what  its  production  at  this  crisis  signifies  is  worthy  of 
serious  attention.  Professor  Langdell  admits  that  resort 
to  it  heretofore  has  been  unnecessary,  because,  "first,  all 
the  different  parcels  of  territory  acquired  by  the  United 
States  from  time  to  time  (with  the  unimportant  exception 
of  Alaska)  were  contiguous  either  to  existing  States  or  to 
territory  previously  acquired;  secondly,  none  of  them 
differed  more  widely  from  the  States  in  soil  and  chmate 
than  the  States  differed  from  each  other;  thirdly,  they 
were  all  virtually  without  inliabitants  and  were  expected 
to  be  peopled  by  emigrants  from  the  States,  from  the 
British  islands,  and  from  western  Europe;  fourthly,  they 
were  all  expected,  at  an  early  day,  to  be  formed  into  States, 
and  as  such  to  be  admitted  into  the  Union ;  fifthly,  none  of 
them  produced  (to  any  extent)  dutiable  articles  .  .  .  ; 
sixthly,  they  all  bordered  upon  navigable  waters,  through 
which  the  products  of  all  foreign  countries  could  easily  be 


228 


CONSTITUTIONAL   GOVERNMENT 

imported,  and,  if  admitted  free  of  duty,  could  be  smuggled 
thence  into  the  States."  It  is  perfectly  true,  as  Professor 
Langdell  adds,  that  "with  the  acquisition  of  Hawaii  and 
the  Spanish  islands,  however,  all  these  conditions  are  radi- 
cally changed."  It  is  not  as  certainly  true,  as  he  claims, 
that  "none  of  these  islands  have  been  acquired  with  a  view 
to  their  being  admitted  as  States."  Indeed,  if  we  may 
believe  the  President,  they  have  not  been  acquired  with 
any  view  whatever,  but  solely  in  pursuit  of  a  fatalism  in 
the  form  of  a  vague  destiny  which  we  might  not  escape. 
Our  authorities  are,  after  acquisition  in  fact,  professedly 
groping  for  a  purpose  and  a  programme. 

The  propositions  that  Congress  and  the  President  may 
without  restraint  acquire  and  hold  territory  that  shall  not 
be  subject  to  the  Constitution  and  general  laws  of  the 
United  States,  that  mere  creatures  of  the  constitution  may 
exercise  powers  conferred  by  it  to  lay  and  collect  taxes 
and  raise  and  equip  armies  forcibly  to  acquire  personal 
possessions  to  be  by  them  despotically  ruled,  are  subversive 
of  constitutional  government.  These  proposals  are  truly 
imperial,  and  have  in  view  a  republic  at  home  and  an  em- 
pire abroad.  They  mean  that  it  is  now  seriously  proposed 
among  us  to  establish  a  dual  government  at  Washington, 
half  representative  and  half  despotic  in  character.  This 
is  in  pursuit  of  a  recent  English  precedent  under  which 
Victoria  is  known  as  "Queen  of  England  and  Empress  of 
India."  It  is  already  quite  within  the  range  of  possibility 
that  the  President  may  be  known  as  "President  of  the 
United  States  and  Emperor  of  the  Philippines."     That 


229 


ESSAYS  AND  ADDRESSES 

will  at  least  indicate  his  functions  if  the  above  pro- 
posals are  sound  and  present  action  in  their  pursuit  is  to 
be  permanent. 

We  have  long  rejoiced  in  a  government  of  laws  rather 
than  of  men.  It  has  been  our  greatest  glory  that  none 
among  us  might  exercise  arbitrary  powers.  All  in  au- 
thority over  us  —  legislative,  executive,  and  judicial 
officials  —  have  exercised  but  delegated  powers.  They  have 
acted  as  the  servants  and  with  the  consent  and  cooperation 
of  the  people.  They  have  in  all  things  been  subject 
to  the  Constitution  and  laws  made  in  its  pursuance. 
They  have  been  solemnly  sworn  to  support  the  Constitution 
of  the  United  States,  and  strict  obedience  to  its  commands 
as  the  supreme  law  of  the  land  has  been  the  test  of  their 
official  fidelity.  It  is  now  proposed  that,  in  addition  to 
their  constitutional  duties  as  the  servants  of  a  free  people. 
Congress  and  the  President  shall  arbitrarily  assume  func- 
tions of  an  entirely  different  character ;  that  with  one  hand 
they  shall  exercise  delegated  and  defined  authority,  and 
with  the  other  self-assumed  and  arbitrary  powers.  In 
America  they  are  to  exercise  certain  powers  with  the  con- 
sent of  the  governed ;  in  the  Philippines,  and  wherever  else 
destiny  may  lead,  they  are  to  ask  only  "the  consent  of 
their  own  conscience"  and  what  they  shall  be  pleased  to 
assume  is  "the  approval  of  civilization."  This  hybrid  may 
or  may  not  be  "imperialism."  It  certainly  is  not  constitu- 
tional government. 

Congress  and  the  President  are  but  creatures  of  the 
Constitution.  It  exists  "to  form  a  more  perfect  union,  to 
establish  justice,  ensure  domestic  tranquillity,  provide  for 

230 


CONSTITUTIONAL   GOVERNMENT 

the  common  defence,  promote  the  general  welfare,  and 
secure  the  blessings  of  liberty  to  ourselves  and  our  pos- 
terity." They  exist  by  its  sole  authority  to  carry  out  its 
great  and  worthy  purposes,  and  for  nothing  else  whatever. 
To  say  that  officials  created  by  the  constitution  may  exer- 
cise powers  which  it  confers  to  do  things  without  its 
purpose  and  beyond  its  authority,  is  to  say  that  a  stream 
may  rise  higher  than  its  source.  To  say  that  Congress  and 
the  President  may  use  the  revenues  of  the  United  States 
and  employ  its  army  and  navy  to  acquire  territory  which 
shall  not  be  subject  to  the  Constitution,  is  to  say  that  they 
may  exercise  their  constitutional  powers  for  extra- 
constitutional  ends,  that  they  may  use  the  public  revenues 
and  exercise  public  authority  for  other  than  public  pur- 
poses. If  only  their  action  within  the  States  is  controlled 
by  the  Constitution,  if  beyond  the  States  they  may  act  at 
will  and  without  restraint,  then  their  will  and  not  the  Con- 
stitution is  the  supreme  law. 

The  assumption  that  Congress  and  the  President  may, 
under  any  circumstances  or  upon  whatever  pretence, 
exercise  powers  derived  from  the  Constitution  for  other 
than  constitutional  purposes,  is  not  only  novel  but  fraught 
with  the  gravest  dangers.  It  involves  the  admission  that 
mere  creatures  of  the  Constitution  may,  without  regard  to 
its  provisions,  arbitrarily  determine  their  functions.  It  is 
a  fundamental  canon  of  constitutional  construction  that 
the  federal  authorities  can  exercise  only  expressly  dele- 
gated powers.  To  admit  the  contrary  is  to  concede  that 
their  powers  are  without  limitation. 

This  demand  for  a  construction  of  the  Constitution 

231 


ESSAYS  AND  ADDRESSES 

which  will  permit  a  government  at  Washington  that  shall 
be  half  representative  and  half  despotic  in  character  is, 
however,  by  no  means  all.  It  is  but  the  first  step  in  a 
backward  course  into  which  we  are  drifting.  Those  among 
us  who  have  so  suddenly  awakened  to  what  they  are 
pleased  to  call  our  national  "isolation"  exhibit  an  ill- 
concealed  contempt  for  the  counsels  of  the  fathers  and  a 
growing  impatience  with  the  Constitution  itself.  They 
have  just  discovered  that  the  nation  has  become  a  giant 
who  "is  no  longer  content  with  the  nursery  rhymes  which 
were  sung  around  his  cradle."*  They  regard  the  Farewell 
Address  outgrown,  and  hold  that  even  the  Monroe  Doc- 
trine has  become  shopworn  or  at  least  of  but  one-sided 
application.  It  is  said:  "We  have  outgrown  the  Consti- 
tution. It  is  not  worth  while  to  discuss  it."t  "The 
Constitution  must  bend."t  "Governments  derive  their 
just  powers  from  the  consent  of  some  of  the  governed."" 
"A  constitution  and  national  policy  adopted  by  thirteen 
half -consolidated,  weak,  rescued  colonies,  glad  to  be  able  to 
call  their  life  their  own,  cannot  be  expected  to  hamper  the 
greatest  nation  in  the  world.  "§  Our  great  questions  of  ad- 
ministrative, civil  service,  and  financial  reform  have  sud- 
denly become  "parochial."  The  business  of  a  mighty 
nation  has  as  suddenly  become  "artificial  and  transient." 
Our  people  are  called  to  abandon  "the  treadmill  round  of 
domestic  politics"  for  "new  thoughts,  new  questions,  new 
fields,    fresh    ho])es,    broader   views,    wider    influences.  "IF 

*  President  Northrup  at  Chicago  Peace  Jubilee  banquet. 

t  General  Merrit.  %  President  Capen.  i|  Senator  Piatt. 

§  Franklin  MacVeagh.  T[ Attorney  General  Griggs. 

232 


CONSTITUTIONAL   GOVERNMENT 

These  quotations,  selected  from  many,  are  here  produced 
merely  to  show  a  trend  of  thought  which  is  believed  to 
bode  no  good  to  constitutional  government. 

It  is  the  nature  of  arbitrary  power  to  grow  by  what  it 
feeds  on.  This  is  especially  true  of  unrestrained  military 
power.  When  wielded  by  "those  who  have  things  to  do" 
it  is  apt  to  be  much  less  tedious  in  its  operation  than  are  the 
slow  processes  through  which  government  by  public  opin- 
ion works  out  its  results.  For  this  reason  delegated  au- 
thority and  arbitrary  power  do  not  work  well  together. 
Indeed,  those  who  are  now  trying  to  act  at  one  and  the 
same  time  as  the  public  servants  of  a  free  people  and  as 
the  despotic  rulers  of  subject  peoples  already  exhibit  signs 
of  impatience  with  the  old  methods,  even  at  home.  The 
words  "treason"  and  "traitor"  have  been  widely  hurled 
at  senators  of  the  United  States  merely  because  they  were 
unwilling  to  surrender  their  constitutional  duty  carefully 
to  consider  and  discuss  the  treaty  of  peace.  The  term 
"rebel"  has  been  freely  applied  to  people  while  yet  Spanish 
subjects,  who  never  owed  allegiance  to  the  United  States. 
In  the  house,  on  February  25,  Mr.  Cannon  said:  "If 
the  speech  of  the  gentleman  from  Kansas,  and  those  of 
some  other  gentlemen  on  the  other  side,  made  yesterday, 
had  been  made  by  them  yesterday  in  Manila,  they  would 
have  been  arrested,  tried  by  a  drumhead  court-martial,  and 
shot."  Members  of  Congress  who  fail  to  agree  with  Mr. 
Cannon  are  not  at  present  in  much  danger  of  drumhead 
courts-martial ;  but  we  shall  see  the  spirit  of  impatience  with 
constitutional  processes  grow  apace  if  our  public  authori- 
ties are  permitted  permanently  to  make  large  use  of  the 

233 


ESSAYS  AND  ADDRESSES 

agencies  of  arbitrary  power.  This  may  be  good  "imperial- 
ism," but  it  does  not  promote  government  by  constitutional 
methods. 

The  question  should  now  be  pressed.  To  what  end  are 
these  grave  dangers  which  we  have  so  lightly  assumed  and 
even  sought?  For  what  sufficient  purpose  is  the  character 
of  our  government  to  be  changed?  We  hear  much  about 
destiny,  and  see  many  good  men  in  the  expansion  current 
in  pursuit  of  a  vague  philanthropy.  Many  stand  ready 
to  vouch  for  our  ability  to  expand  beyond  seas,  but  few 
venture  affirmative  reasons  why  we  should  do  so.  Mr. 
Reid  assures  us  that  "the  world  will  never  again  be  in 
doubt  whether,  when  driven  to  war,  we  will  end  it  in  a  gush 
of  sentimentality  or  a  shiver  of  unmanly  apprehension  over 
untried  responsibilities."  Possibly  this  is  important,  if 
true.  The  Filipinos  have  been  advised  "that  the  mission 
of  the  United  States  is  one  of  benevolent  assimilation." 
The  President,  in  his  Boston  address,  by  way  of  defence 
of  an  insecure  position,  claims  that  we  took  the  islands  from 
necessity,  and  lays  the  blame  on  God.  He  says:  "The 
Philippines,  like  Cuba  and  Porto  Rico,  were  entrusted  to 
our  hands  by  the  providence  of  God."  If  this  be  true,  it 
ends  the  discussion.  However,  it  is  yet  novel  doctrine  that 
public  servants  may  substitute  what  they  guess  to  be  the 
will  of  God  for  the  constitution  and  laws  of  the  land.  In 
this  entire  matter  there  has  been  somewhat  too  much  cer- 
tainty as  to  the  Divine  will,  and  too  little  attention  to 
constitutional  requirements  and  difficulties.  Constitu- 
tional restraints  are  of  course  annoying  to  those  who  see 
arbitrary  power  within  their  grasp.     It  must  not  be  for- 

234 


CONSTITUTIONAL   GOVERNMENT 

gotten,  however,  that  it  is  the  main  purpose  of  a  written 
constitution  to  define  the  functions  of  public  officials  and 
to  hamper  their  action.  Our  public  authorities  cannot  too 
soon  be  called  to  account  and  made  to  know  that  "benevo- 
lent assimilation"  of  peoples  wholly  unfit  to  be  incorpo- 
rated into  our  citizenship  is  not  within  the  province  of  con- 
stitutional government.  There  is  no  provision  in  the  con- 
stitution directing  the  President  to  use  the  army  and  navy 
in  foreign  missionary  work.  It  is  no  part  of  the  duty  of  a 
constitutional  government  to  make  "contribution  from  our 
ease  and  purse  and  comfort  to  the  welfare  of  others." 
Congress  has  "power  to  lay  and  collect  taxes,  duties,  im- 
posts, and  excises,  to  pay  the  debts  and  provide  for  the 
common  defence  and  general  welfare  of  the  United 
States,"  and  for  no  other  purpose.  Unless  Congress  may 
use  the  revenues  and  forces  of  the  United  States  for  other 
than  constitutional  purposes,  it  cannot  use  them  to  acquire, 
and  to  enforce  its  reign  over,  territory  that  is  not  subject 
to  the  Constitution. 

The  most  extraordinary  reason  given  for  the  proposed 
retention  of  the  Philippines  is  that  the  inhabitants  are 
wholly  unfit  for  self-government.  That  is,  they,  or  at  least 
their  children,  are  to  be  made  citizens  of  the  republic  for 
the  express  reason  that  they  are  unfit  for  American  citizen- 
ship. 

We  have  heretofore  acquired  territory  only  that  it 
might  in  due  time  take  its  place  in  the  sisterhood  of  States, 
and  that  its  inhabitants  might  share  with  us  on  equal  terms 
the  blessings  of  free  institutions.  All  our  constitutional 
amendments  have  had  in  view  the  extension  of  the  princi- 

235 


ESSAYS  AND  ADDRESSES 

pie  that  governments  derive  their  just  powers  from  the  con- 
sent of  the  governed.  Every  step  in  our  national  progress 
has  been  marked  by  new  guarantees  for  the  security  of 
personal  rights.  Even  aliens  among  us  share  the  main 
privileges  and  immunities  guaranteed  by  the  Constitution.* 
The  inhabitants  of  the  territories  of  the  United  States 
have  thus  far  shared  these  rights.  Shall  this  line  of  pro- 
gress under  free  institutions  now  be  interrupted  ?  Is  it  not 
rather  late  for  us  to  discover  that  governments  derive  their 
just  powers  from  some  of  the  governed?  Shall  we  at  this 
late  day  concede  that  Congress  has  discretionary  power  to 
make  the  Constitution  and  laws  of  the  United  States  gen- 
eral or  special?  Shall  we  now  admit  that  personal  rights 
and  immunities  beneath  the  American  flag  are  not  funda- 
mental, but  discretionary  with  Congress?  These  questions 
are  fundamental  if  free  government  is  to  continue  even  at 
home.  The  supremacy  of  the  Constitution  must  be  pre- 
served, unless  ours  is  to  become  a  government  by  men 
instead  of  a  government  of  laws. 

The  United  States  may  and  should  decline  to  accept 
the  sovereignty  of  any  of  the  islands  of  which  it  has  de- 
prived Spain.  It  may  encourage  and  aid  in  the  formation 
of  the  best  native  governments  now  possible.  With  such 
sovereign  governments  it  may  then  enter  into  treaties  pro- 
viding for  the  "open  door,"  for  consular  courts,  with  juris- 
diction of  all  questions  affecting  foreigners,  and  for  the 
supervision  by  the  United  States,  for  a  time,  of  their  for- 
eign relations.  In  return  for  these  concessions  the  United 
States  might  also  for  a  time  guarantee  such  governments 

*Wong  Wing  vs.  United  States,  163  U.  S.  228. 

236 


CONSTITUTIONAL   GOVERNMENT 

from  foreign  interference.  In  this  way  we  can  exhibit  to 
the  world  a  national  disinterestedness  which  is  now  widely 
questioned,  secure  all  proper  rights  for  our  commerce  and 
that  of  other  commercial  nations,  and  discharge  any  real 
or  supposed  duty  to  the  peoples  of  these  islands.  Thus 
will  be  secured  to  their  peoples  the  greatest  good, — free- 
dom from  outside  aggression,  and  opportunity  to  work  out 
their  own  salvation  in  their  own  way. 

Our  choice  does  not  lie  between  a  national  self-interest 
which  ignores  all  moral  obligations  to  others,  and  a  policy 
that  would  steadily  enforce  such  obligations  by  the  war- 
ship and  the  Maxim  gun.  It  does  lie  between  an  opportu- 
nity to  lead  the  world  voluntarilj^  to  accept  the  blessings  of 
liberty  and  peace  and  a  crusade  to  extend  these  blessings 
vi  et  armis. 

It  is  a  law  of  physics  that  two  bodies  cannot  occupy  the 
same  space  at  the  same  time.  Abraham  Lincoln  but  stated 
the  application  of  this  law  to  the  realm  of  politics  when 
he  declared  that  "this  government  cannot  endure  perma- 
nently half  slave  and  half  free."  Under  his  own  splendid 
leadership  his  prediction  that  the  Union  would  cease  to  be 
divided  was  gloriously  fulfilled.  The  question  for  our 
generation  is  whether  we  shall  voluntarily  again  divide  it ; 
whether  we  shall  permit  to  be  set  up  at  Washington  des- 
potic power,  there  to  compete  with  delegated  authority  for 
final  supremacy;  whether,  in  our  desire  to  rescue  others 
from  excessive  taxation,  we  shall  take  it  upon  ourselves  in 
perpetuity ;  whether,  in  the  vain  effort  to  share  our  institu- 
tions with  half -civilized  men,  we  shall  destroy  their  char- 
acter. 

237 


LIBERTY  OR  DESPOTISM* 

TT  is  high  time  to  inquire,  To  what  end  do  we  continue 
Spanish  methods  in  the  Philippines?  Why  this  terri- 
ble sacrifice  of  American  lives?  By  what  authority  has 
Mr.  McKinley  sent  forces,  recruited  to  win  liberty  for 
Cuba,  to  wage  war  against  liberty  in  Asia?  Why  has  he 
sent  brave  men  to  death  wondering  "What  are  we  fighting 
for?"  Why  this  awful  slaughter  of  natives?  To  what 
purpose  have  we  taken  upon  ourselves  the  burden  of  ex- 
cessive taxation  in  perpetuity?  For  what  sufficient  reason, 
after  more  than  a  century  of  unparalleled  achievement, 
have  we  become  unfaithful  to  the  traditions  and  principles 
which  have  made  America  distinctive  among  the  nations 
of  the  world  ?  Why  do  we  allow  our  chosen  representatives 
to  assume  arbitrary  power?  Why  do  we  permit  the  estab- 
lishment of  a  dual  government  at  Washington,  half  repre- 
sentative and  half  despotic?  To  what  end  do  we  destroy 
the  character  of  our  institutions  in  a  vain  effort  to  share 
them  with  alien  races? 

These  inquiries  involve  vastly  more  than  a  few  petty 
additions  to  our  trade  or  even  the  welfare  of  the  people  of 
some  remote  islands.  In  the  language  of  Senator  Hoar, 
they  involve  "a  greater  danger  than  we  have  encountered 
since  the  Pilgrims  landed  at  Plymouth  —  the  danger  that 
we  are  to  be  transformed  from  a  republic,  founded  on  the 
Declaration  of  Independence,  guided  by  the  counsels  of 
*Address  at  the  Chicago  Liberty  Meeting,  April  30,  1899. 

238 


LIBERTY  OR  DESPOTISM 

Washington,  into  a  vulgar,  commonplace  empire,  founded 
upon  physical  force. " 

True,  Mr.  McKinley  says  that  "no  imperial  designs 
lurk  in  the  American  mind.  They  are  alien  to  American 
sentiment,  thought  and  purpose.  Our  priceless  principles 
undergo  no  change  under  a  tropical  sun.  They  go  with  the 
flag." 

These  are  fine  phrases;  but  we  shall  do  well,  as  Mr. 
Boutwell  suggests,  not  to  confuse  the  issue  with  what  Mr. 
McKinley  says.  The  inquiry  must  be  confined  to  what  he 
does.  What  he  and  others  have  said,  aided  by  his  military 
censor,  has  too  long  diverted  public  attention  from  the  deep 
significance  of  the  facts.  That  an  administration,  chosen 
to  save  the  country  from  financial  chaos  on  a  platform 
which  as  to  foreign  policy  merely  promised  carefully  to 
watch  and  guard  "all  our  interests  in  the  Western  Hemis- 
phere" and  employ  the  "influence  and  good  offices"  of 
the  United  States  "to  restore  peace  and  give  indepen- 
dence" to  Cuba,  should  so  far  commit  the  country  to  a 
dangerous  and  revolutionary  policy  is  itself  a  gross  be- 
trayal of  the  principles  of  representative  government. 

The  imperial  policy  being  new  to  us,  none  has  arisen  to 
defend  it  on  the  merits.  We  are,  however,  assured  by  Mr. 
McKinley  that  "the  Philippines,  like  Cuba  and  Porto 
Rico,  were  entrusted  to  our  hands  by  the  providence  of 
God."  If  this  is  true,  Providence  made  a  poor  delivery  of 
the  corpus  of  the  trust.  What  we  have  is  a  mere  quitclaim 
of  a  disputed  title  to  property  adversely  possessed.  Des- 
tiny, to  say  nothing  of  Providence,  usually  does  much  bet- 
ter in  transferring  territory  from  the  weak  to  the  strong. 

239 


ESSAYS  AND  ADDRESSES 

It  is  widely  urged  that  the  chance  location  of  a  naval 
battle,  even  the  hoisting  of  a  flag  without  authority,  has 
imposed  upon  us  "a  white  man's  burden"  from  which  we 
may  not  without  dishonor  escape.  If  such  are  the  conse- 
quences of  unpremeditated  action,  we  should  pray  to  be 
delivered  from  naval  victories  and  flag-raisings. 

The  claim  is  also  pressed  that  by  the  destruction  of  the 
Spanish  fleet  in  Manila  Bay  we  at  once  became  responsi- 
ble for  public  order  in  the  Philippines  and  especially  for 
the  lives  and  property  of  foreigners  resident  there.  We 
know  how  a  few  widows  as  stockholders  of  corporations 
are  made  to  do  duty  in  their  defense  against  the  righteous 
claims  of  the  public.  In  the  same  way  a  few  foreigners  in 
Manila  are  made  an  excuse  for  a  great  injustice  to  a  vast 
native  population.  Foreigners  in  whatever  country  sub- 
ject themselves  and  their  property  to  its  laws  and 
protection.  Their  residence  is  from  choice  and  they 
cannot  complain  if  accorded  such  security  as  the  people  of 
the  country  enjoy. 

It  is  a  bold  assumption  that  the  Filipinos  will  loot  and 
murder.  They  have  not  done  so.  The  only  breach  of  pub- 
lic order  since  the  close  of  the  Spanish  War  has  been  in 
fact  due  to  our  presence  in  the  islands.  Our  authority  has 
at  no  time  extended  beyond  the  range  of  our  guns.  We 
have  for  some  months  held  200  square  miles  of  territory 
having  a  population  of  about  300,000.  As  for  the  remain- 
ing 200,000  miles  of  territory,  with  a  population  of  per- 
haps 8,000,000,  public  order  has  been  maintained  for 
months  by  the  people  themselves.  Beyond  our  lines,  upon 
the  testimony  of  our  own  officers,  good  order  has  prevailed 

240 


LIBERTY  OR  DESPOTISM 

and  life  and  property  have  been  secure.  The  shameful 
truth  is  that  desolation  and  ruin  mark  the  character  and 
limits  of  our  influence  in  the  islands. 

It  was  said  of  Caesar  that  he  killed  1,000,000  Germans, 
created  a  solitude  and  called  it  peace.  Under  the  ghastly 
pretence  of  extending  "the  blessings  of  civilization"  we 
are  to-day  carrying  death  and  ruin  into  the  country  of  a 
peaceful  people.  In  the  name  of  humanity  and  public 
order,  in  the  name  of  civilization,  in  the  defence  of  our  own 
honor,  even  in  the  sacred  cause  of  religion,  we  have  as- 
sumed the  role  of  bloody  crusaders  and  let  loose  the  hell 
hounds  of  aggressive  war.  When  we  have  turned  the  Fili- 
pinos into  corpses  we  shall  pronounce  them  pacified. 

To  kill,  save  in  self-defence,  is  murder.  To  drive  away 
women  and  children  and  burn  their  houses  is  outrage  and 
arson.  By  this  code  we  measure  the  conduct  of  the  indi- 
vidual. Are  these  crimes  less  criminal  when  committed  by 
a  nation?  Is  war,  except  for  national  self-preservation, 
aught  but  the  most  monstrous  of  crimes? 

The  war  against  the  Filipinos  has  not  even  the  poor 
excuse  of  legal  authority.  It  is  no  part  of  the  war  against 
Spain.  It  was  not  declared  by  Congress.  A  number  of 
our  wars  with  inferior  races  are  known  in  history  by  per- 
sonal names.  To  King  Philip's  War  and  others  of  this 
class  must  be  added  William  McKinley's  war. 

The  vital  defect  in  Mr.  McKinley's  policy  lies  in  his 
purpose  to  extend  American  sovereignty  over  an  alien  and 
unwilling  people.  The  contention  that  our  will,  not  theirs, 
shall  be  done  in  the  Philippines  runs  counter  to  the  law  of 
our  being  as  a  nation.     Our  government  rests  upon  the 

241 


ESSAYS  AND  ADDRESSES 

proposition  that  the  right  of  self-government  is  inherent  in 
every  people  and  cannot  become  the  subject  of  grant.  All 
its  powers  are  delegated  by  the  people.  It  is  without  power 
graciously  to  grant  to  the  Filipinos  such  measure  of  self- 
government  as  it  shall  from  time  to  time  deem  them  fit 
to  enjoy. 

The  Tribune  this  morning  says  that  this  meeting  is 
to  announce  that  "the  American  people  cannot  be  trusted 
to  give  the  Filipinos  a  just  government."  The  reply  to 
this  is,  that  it  is  not  the  duty  of  the  American  people  to 
give  government,  whether  just  or  otherwise,  to  anybody. 
Their  own  government  is  organized  to  secure  the  blessings 
of  liberty  to  themselves  and  their  posterity,  to  enable  them 
to  govern  themselves,  and  not  as  a  source  of  any  kind  of 
government  whatever. 

Self-government  has  never  fallen  upon  a  people  like 
a  manna  from  above.  It  has  everywhere  been  a  self- 
achievement,  a  growth  from  within,  not  a  deposit  from 
without.  If  the  Filipinos  are  really  to  be  free,  they  must 
achieve  freedom  for  themselves.  Their  right  is  to  work 
their  own  way  to  self-government  free  from  outside  inter- 
ference. 

We  forget  that  the  Filipinos  may  not  wish  to  be  as  we 
are,  that  a  people  may  be  happy  and  even  prosperous 
under  institutions  unlike  our  own,  and  that  even  our  duty 
to  civilization  may  not  require  us  to  become  benevolent 
assimilators  of  inferior  races.  In  our  desire  to  impose  our 
institutions  upon  this  alien  people  we  disregard  their  right 
to  govern — yea,  even  to  misgovern — themselves.  We  have 
suddenly  become  strangely  sensitive  to  danger  to  life  and 

242 


LIBERTY  OR  DESPOTISM 

property,  especially  the  lives  and  property  of  a  handful 
of  foreigners,  in  the  Philippines.  It  seems  that  supposed 
and  self-assumed  duty  to  civilization  requires  us  at  once 
to  secure  in  the  islands  a  degree  of  security  for  life  and 
property  which  prevails  nowhere  on  this  continent  south 
of  Mexico,  a  security  which  does  not  prevail  at  tliis  moment 
in  all  parts  of  our  own  land.  Had  we  insisted  in  1865  on 
guarantees  of  public  order  in  Mexico,  Maximilian  would 
have  remained  its  emperor.  Mr.  Seward  at  that  time  cor- 
rectly stated  our  true  position  in  urging  the  principle  which 
"the  United  States  hold  in  relation  to  all  other  nations," 
that  "they  have  neither  a  right  nor  any  disposition  to  in- 
tervene by  force  in  the  internal  affairs  of  Mexico,  whether 
to  maintain  a  republican  or  even  a  despotic  government 
there,  or  to  overthrow  an  imperial  or  a  foreign  one,  if 
Mexico  shall  choose  to  establish  it  or  accept  it";  and  he 
finally  insisted  upon  the  withdrawal  of  the  French  troops 
solely  upon  the  ground  that  we  would  not  permit  the  estab- 
lishment of  a  foreign  government  in  Mexico  against  the 
will  of  the  Mexican  people. 

Forcible  annexation  of  the  Philippines  can  no  more  be 
thought  of  in  1899  than  in  1898.  What  would  have  been 
"criminal  aggression"  last  year  is  criminal  aggression  this 
year.  It  is  as  true  at  the  close  of  the  nineteenth  century 
as  it  was  at  the  end  of  the  eighteenth  that  taxation  without 
representation  is  tyranny  and  that  force  cannot  be  em- 
ployed as  a  chief  instrument  in  the  government  of  a  free 
people.  The  Fihpinos  must  themselves  choose;  for  us  to 
impose  upon  them  a  government  would  be  rank  disloyalty 
to  our  most  cherished  principles. 

243 


ESSAYS  AND  ADDRESSES 

The  powers  that  shall  henceforth  be  exercised  in  the 
government  of  the  Philippine  Islands  must  come  from  their 
people  or  from  Washington.  Such  powers  have  neither 
been  delegated  nor  can  they  be  delegated  to  Mr.  McKin- 
ley.  The  powers  which  he  has  thus  far  exercised  in  his 
personal  crusade  in  behalf  of  trade  and  religion  are  self- 
assumed  and  despotic  in  character. 

The  Constitution  makes  no  provision  for  the  forcible 
intervention  by  our  government  in  the  affairs  of  a  people 
who  do  not  form  an  integral  part  of  the  Union.  To  the 
extent  we  permit  our  chosen  representatives  to  exercise 
arbitrary  powers,  whether  at  home  or  abroad,  we  allow 
them  to  sap  and  destroy  representative  government  itself. 
Mr.  McKinley  is  introducing  at  Washington  the  princi- 
ples and  methods  of  absolutism.  He  mistakes  a  passion  for 
power,  which  is  as  old  as  despotism,  for  the  currents  of 
destiny.  There  are  currents  of  destiny,  but  they  set  toward 
human  freedom  and  away  from  despotism.  If  we,  the  peo- 
ple, are  to  continue  to  rule  even  at  home,  we  must  reject 
the  despot  and  his  methods,  although  they  come  to  us  utter- 
ing fine  phrases  about  benevolent  assimilation,  priceless 
principles,  and  hoisted  flags. 

At  this  moment  in  our  country,  in  our  own  city,  the  right 
of  free  men  —  whose  duty  it  is  to  pass  upon  the  acts  of  their 
official  servants  —  to  know  the  truth  and  to  utter  their  pro- 
test is  questioned.  The  word  "rebel"  is  freely  applied  to 
men  who  never  owed  allegiance  to  the  United  States.  The 
spirit  of  impatience  of  constitutional  processes  has  already 
reached  the  stage  in  which  the  words  "treason"  and  "trai- 
tor" are  made  to  do  duty  in  defense  of  arbitrary  power. 

244 


LIBERTY  OR  DESPOTISM 

The  question  is  squarely  presented,  shall  ours  become  a 
government  of  men  instead  of  a  government  of  laws?  The 
powers  which  Mr.  McKinley  claims  in  the  Philippines  can- 
not be  exercised  by  a  government  which  is  merely  represen- 
tative. 

Despotic  power  has  already  appeared  at  Washington, 
there  to  compete  with  delegated  authority  for  final  suprem- 
acy. These  forces  are  as  old  as  history.  They  cannot 
exist  together.    Our  choice  lies  between  them. 


245 


REPUBLIC   OR   EMPIRE* 

rr\  HE  foregoing  quotations,  [not  reprinted  here]  chosen 
mainly  and  almost  at  random  from  official  utter- 
ances, afford  glimpses  of  an  amazing  modern  crusade. 
They  disclose  our  trusted  representatives  in  the  act  of  seek- 
ing the  Filipino  alliance.  They  bear  witness  to  the 
"cooperation"  for  many  weeks  of  our  naval  and  military 
commanders  with  "Gen.  Aguinaldo,  Commanding  the 
Philippine  Forces"  against  "a  common  enemy."  They  are 
conclusive  that  when  the  Filipinos  became  our  allies  they 
believed,  and  we  knew  they  believed,  that  the  object  of  the 
alliance  was  their  independence.  They  indicate  the  trans- 
formation of  a  war  for  liberty  in  Cuba  into  a  war  against 
liberty  in  Asia.  They  show  how  a  much  vaunted  crusade 
for  humanity  became  a  brutal  war  of  "criminal  aggres- 
sion." They  make  it  perfectly  clear  that  the  most  brazen 
mendacity  cannot  alter  or  suppress  a  shameful  record. 

The  cause  of  Aguinaldo  has  not  changed.  If  he  de- 
served success  in  1898,  he  deserves  it  now.  If  he  was  a 
leader  with  whom  our  forces  might  properly  cooperate 
then,  he  is  not  now  the  chieftain  of  "robber  bands."  Ad- 
miral Dewey  and  Generals  Anderson  and  Merritt  were  his 
comrades  in  honorable  warfare  or  his  accomplices  in  brig- 
andage. 

The  fate  of  Aguinaldo  and  his  cause  is  but  an  incident 

*Address  at  the  Anti- Imperialist  Conference,  Philadelphia,  Febru- 
ary 23,  1900. 

246 


REPUBLIC  OR  EMPIRE 

of  an  awful  tragedy.  The  deliberate  murder  by  American 
hands  of  the  best  hope  of  native  government  in  the  Philip- 
pines, the  ruthless  slaughter  of  the  Filipinos  in  the  name 
though  not  by  the  authority  of  the  American  people,  is  hor- 
rible enough.  It  is,  however,  but  an  incident  of  the  be- 
trayal on  American  soil  of  the  principle  of  self-government 
by  the  McKinley  administration. 

True,  Mr.  McKinley  says  that  "the  Philippines,  like 
Cuba  and  Porto  Rico,  were  entrusted  to  our  hands  by  the 
providence  of  God."  We  shall  do  well,  as  Mr.  Boutwell 
suggests,  not  to  confuse  the  issue  with  what  Mr.  McKinley 
says.  His  acts  are  more  significant  than  his  words.  It 
was  no  mysterious  hand  that  caused  the  so-called  "treaty 
of  peace"  to  be  read  thus: 

Spain  relinquishes  all  claim  of  sovereignty  over  and 
title  to  Cuba.  .  .  .  Spain  cedes  to  the  United  States 
the  island  of  Porto  Rico.  .  .  .  Spain  cedes  to  the 
United  States  the  archipelago  known  as  the  Philippine  Is- 
lands. 

It  will  not  do  to  let  the  author  and  finisher  of  this  prec- 
ious document  hide  behind  the  "providence  of  God."  The 
treaty  with  Spain  did  not  fall  upon  us  like  manna  from 
above.  It  cannot  be  accepted  as  the  basis  of  discussion. 
On  its  face  appears  the  sinister  purpose  to  do  in  the  Philip- 
pines what  we  solemnly  promised  not  to  do  in  Cuba.  If 
the  forcible  annexation  of  Cuba  would  be  "criminal  ag- 
gression," pray  what  is  the  forcible  annexation  of  the 
Philippines?  When,  in  defiance  of  the  law  of  nations  we 
interfered,  both  were  struggling  against  a  common  op- 
pressor for  independence.     One,  lying  near  our  shores, 

247 


ESSAYS  AND  ADDRESSES 

might  possibly  become  fitted  to  share  our  institutions.  The 
other,  situated  far  beyond  our  borders,  can  have  no  other 
than  an  artificial  relation  to  us.  Why  by  a  single  stroke 
make  one  free  and  the  other  a  subject  province?  There  is 
no  answer  that  is  honorable  to  American  statesmanship. 

The  assumed  success  of  Mr.  McKinley's  war  of  "crim- 
inal aggression, "  the  destruction  by  his  hand  of  native  gov- 
ernment in  the  Philippines,  brings  us  face  to  face  with  a 
proposed  task  which  we  cannot  perform  and  retain  the 
self-government  in  which  we  have  so  long  rejoiced.  To 
enter  upon  it  involves  a  vital  change  in  our  institutions.  To 
succeed  in  it  we  must  surrender  the  noble  achievements 
of  our  past,  forsake  the  advanced  ideals  of  our  national 
life,  and  abandon  the  ground  which  Washington  pre- 
empted and  Lincoln  made  ours. 

The  Constitution  created  a  nation  of  States,  "an  inde- 
structible union,  composed  of  indestructible  States."  It 
was  its  purpose  "to  form  a  more  perfect  union  .  .  . 
and  secure  the  blessings  of  liberty  to  ourselves  and  our 
posterity."  Every  person  born  or  naturalized  within  the 
United  States  was  to  be  a  citizen  of  the  nation  and  of  the 
State  of  his  residence.  All  people  of  the  nation  were  to 
constitute  a  brotherhood  of  citizens  having  equal  rights 
before  the  law,  which  might  not  be  denied  or  abridged 
because  of  race  or  color.  There  were  to  be  no  subjects, 
only  citizens.  The  government  was  to  derive  its  powers 
from  consent  of  the  governed.  This  consent  was  to  be 
manifested  by  the  active  participation  by  the  governed  in 
a  government  which  was  to  be  their  own  and  by  them  con- 
trolled.   New  territory  might  be  acquired,  but  only  in  due 

248 


REPUBLIC   OR  EMPIRE 

course  to  become  States.  In  the  language  of  the  Supreme 
Court,  "It  is  acquired  to  become  a  State,  and  not  to  be 
held  as  a  colony,  and  governed  by  Congress  with  abso- 
lute authority."  * 

Such,  in  brief,  was  the  ideal  which  for  a  century  and  a 
quarter  we  cherished,  the  plan  of  popular  government  to 
which  until  two  years  ago  we  were  true.  It  is  now  first 
proposed  to  abandon  this  ideal  and  destroy  the  results  of 
its  pursuit.  We,  who  inherit  the  teachings  and  achieve- 
ments of  Washington  and  Lincoln,  are  asked  to  seal  with 
our  approval  the  betrayal  of  their  principles.  We  are  ex- 
pected to  tolerate  and  even  applaud  the  acquisition  of  terri- 
tory by  the  President  and  Congress  to  be  by  them  ruled 
without  constitutional  warrant  or  restraint.  We  are  to 
permit  mere  creatures  of  the  Constitution  to  exercise  pow- 
ers, acquired  and  held  under  it,  to  do  things  without  its 
purpose  and  beyond  its  control.  Constitutional  powers 
and  agencies  are  to  be  used  to  promote  ends  that  are  with- 
out and  beyond  the  Constitution.  The  seeds  of  dual  gov- 
ernment at  Washington  are  already  sown.  The  President 
and  Congress  are  to  be  no  longer  mere  servants  of  a  free 
people.  It  is  proposed  that  they  shall  henceforth  wield 
both  constitutional  and  extra-constitutional  powers.  With 
one  hand,  they  are  to  continue  (for  the  time  being)  to 
exercise  delegated  and  defined  authority;  with  the  other, 
they  are  to  execute  self-assumed  and  arbitrary  powers. 
This  is  what  the  proposal  to  rule  the  Spanish  islands 
outside  the  Constitution  means.  Upon  the  brink  of  this 
precipice  we  stand. 

*  Scott  vs.  Sanford,  19  How.  393. 

249 


ESSAYS  AND  ADDRESSES 

These  extraordinary  proposals  are  thus,  in  part,  stated 
by  Secretary  Root : 

I  assume  .  .  .  that  the  United  States  has  all  the 
powers  in  respect  of  a  territory  it  has  thus  acquired,  and  the 
inhabitants  of  that  territory,  which  any  nation  in  the  world 
has  in  respect  of  territory  which  it  has  acquired;  that,  as 
between  the  people  of  the  ceded  islands  and  the  United 
States,  the  former  are  subject  to  the  complete  sovereignty 
of  the  latter,  controlled  by  no  legal  limitations  except  those 
which  may  be  found  in  the  treaty  of  cession ;  that  the  people 
of  the  islands  have  no  right  to  have  them  treated  as  States, 
or  to  have  them  treated  as  the  territories  previously  held  by 
the  United  States  have  been  treated,  or  to  assert  a  legal 
right  under  the  provisions  of  the  Constitution  ...  or 
to  assert  against  the  United  States  any  legal  right  what- 
ever not  found  in  the  treaty. 

The  so-called  treaty  of  peace  thus  becomes  the  Magna 
Charta,  the  Bill  of  Rights,  and  the  Constitution  of  the  ten 
millions  of  civilized  human  beings  who  axe  natives  of  the 
Spanish  islands.  What  rights,  wrung  for  them  from  un- 
willing Spain,  are  by  tliis  precious  modern  charter  of 
liberty  guaranteed  to  them?  These  are  few  and  simple, 
as  follows: 

The  civil  rights  and  political  status  of  the  native  in- 
habitants of  the  territories  hereby  ceded  to  the  United 
States  shall  be  determined  by  the  Congress. 

The  inhabitants  of  the  territories  over  which  Spain 
relinquishes  or  cedes  her  sovereignty  shall  be  secured  in  the 
free  exercise  of  their  religion. 

It  is  also  declared  that  the  relinquishment  or  cession 
of  Spanish  sovereignty  cannot  impair  the  property  or 
rights  pertaining  thereto  "of  provinces,  municipalities, 
public   or    private   establishments,    ecclesiastical   or   civic 

250 


REPUBLIC   OR  EMPIRE 

bodies,  or  any  other  associations  having  legal  capacity  to 
acquire  and  possess  property  .  .  .  ,  or  of  private  indi- 
viduals." 

Thus  in  a  dozen  lines  of  a  treaty,  made  as  we  are  as- 
sured in  their  interest  though  without  their  consent,  the 
natives  of  the  Spanish  islands  may  find  all  their  legal  rights 
set  forth.  Not  only  so,  but  in  the  same  lines  they  may  also 
find  the  claims  of  a  State  church  to  much  of  the  desirable 
property  of  their  islands  carefully  preserved  and  protected. 
This  shows  great  progress  in  the  power  of  condensed  state- 
ment. By  comparison,  what  a  waste  of  words  appears  in 
our  Magna  Charta,  Declaration  of  Independence,  Bill  of 
Rights,  and  Constitution!  We  need  not  wonder,  as  we 
stand  with  uncovered  head  in  the  presence  of  this  final 
charter  of  liberty,  that  there  are  those  among  us  who  regard 
our  musty  and  verbose  charters  "outgrown." 

The  simple  terms  and  limitations  of  this  precious  docu- 
ment also  bear  concrete  testimony  to  Mr.  McKinley's  faith 
in  what  he  calls  "the  wisdom  of  Congress."  In  this  he  has 
also  made  a  great  advance  over  the  suspicious  framers  of 
the  Constitution.  They  feared  and  refused  to  commit  the 
liberties  of  three  million  people  to  the  tender  care  of  a 
Congress  of  their  own  choice  and  directly  responsible  to 
themselves.  He  neither  fears  nor  hesitates  to  commit  the 
liberties  of  ten  million  souls  to  the  control  of  a  Congress 
of  another  race  in  no  way  representative  of,  or  responsible 
to  them.  He  says  that  he  has  every  (undisclosed)  reason 
to  believe  that  his  new  wards  share  his  own  faith  in  the 
wisdom  of  Congress.  He  even  believes  that  a  simple  des- 
potic government  imposed  upon  them  by  him  is  "in  accord- 

251 


ESSAYS  AND  ADDRESSES 

ance  with  the  wishes  and  the  aspirations  of  the  great  mass 
of  the  Fihpino  people."  It,  however,  requires  the  presence 
in  the  Phihppines  of  some  eighty  thousand  American  sol- 
diers to  aid  them  in  realizing  their  alleged  "wishes  and  as- 
pirations." 

This  "treaty  of  peace,"  or  new  charter  of  liberty,  is  of 
course  to  be  interpreted  in  the  light  of  Mr.  McKinley's 
purpose  of  "benevolent  assimilation."  It  is  in  this  spirit 
that  Mr.  Root,  in  his  annual  report  as  Secretary  of  War, 
proceeds  as  follows: 

The  people  of  the  ceded  islands  have  acquired  a  moral 
right  to  be  treated  by  the  United  States  in  accordance  with 
the  underlying  principles  of  justice  and  freedom  which  we 
have  declared  in  our  Constitution,  which  are  the  essential 
safeguards  of  every  individual  against  the  powers  of  gov- 
ernment, not  because  those  provisions  were  enacted  for 
them,  but  because  they  are  essential  limitations  inherent  in 
the  very  existence  of  American  government. 

Thus  it  appears,  that  by  reason  of  a  treaty  in  the  making 
of  which  they  did  not  share,  the  Filipinos  have  acquired 
rights  both  legal  and  moral  in  character.  Their  rights  of 
property  and  security  in  the  exercise  of  religion  are  in  some 
sense  legal.  Their  civil  rights  and  political  status  rest  on 
moral  sanctions.  How  thankful  they  should  be,  especially 
for  the  assurance  of  Secretary  Root,  that  they  have  ac- 
quired a  moral  right  to  be  treated  by  their  alien  masters 
"in  accordance  with  the  underlying  principles  of  justice 
and  freedom."  It  seems  that  but  for  this  precious  treaty 
they  would  be  without  even  moral  rights.  Anybody  can 
see  that  by  virtue  of  the  treaty  they  have  become  entitled 
to  "such  measure  of  liberty  as  Congress  shall  from  time  to 

252 


REPUBLIC   OR  EMPIRE 

time  deem  them  fit  to  enjoy."  What  more  can  an  "inferior 
race"  ask  of  its  masters?  What  matter  if  the  liberty  which 
comes  without  effort  and  as  a  benefaction  to  its  recipients 
is  a  plant  of  slow  growth?  These  people  live  in  the  tropics. 
Who  ever  heard  of  such  people  caring  much  for  hberty? 
They  may  thank  their  lucky  stars  that  they  have  been  com- 
mitted to  the  tender  care  of  such  good  masters.  If  their 
chance  of  liberty  is  slight,  what  they  get  will  cost  them 
nothing,  not  even  a  thought.  It  ought  also  to  be  worth 
something  to  tropical  islanders  to  be  but  one  remove  from 
Mr.  McKinley's  "providence  of  God." 

Mr.  McKinley's  Porto  Rican  dilemma  was  anticipated 
by  those  who  refused  to  join  hands  with  him  in  his  war  of 
"criminal  aggression"  in  the  Philippines.  They  foresaw 
the  irrepressible  conflict  that  is  now  on  between  those  who 
love  the  principles  of  the  American  Constitution  as  it  is 
and  those  who  would  fling  those  principles  aside  in  pursuit 
of  colonial  empire.  During  all  the  years  of  a  glorious  cen- 
tury that  constitution  has  been  the  supreme  law  of  a  land 
composed  of  States  and  territories  in  preparation  for 
statehood.  Under  its  sway  representatives  of  the  people 
have  exercised  none  but  delegated  powers.  Their  govern- 
ment has  been  an  expression,  not  a  source,  of  authority. 
It  has  expressed  the  cooperation  through  which  they  ob- 
tained for  themselves  the  security  of  public  order,  the 
blessings  of  self-government.  They  did  not  create  it  a 
government  of  inherent  powers.  It  was  but  the  agent  by 
means  of  which  they  sought  to  secure  the  blessings  of 
liberty  for  themselves  and  their  posterity.  It  neither  ex- 
ercised despotic  authority  over  them  or  over  others.     It 

253 


ESSAYS  AND  ADDRESSES 

was  not  set  up  to  rival  royalty.  It  was  not  to  become  an 
oppressor,  but  to  create  a  refuge  for  the  oppressed.  It 
was  simply  a  "government  of  the  people,  by  the  people, 
for  the  people." 

Such  are  the  ideals  that  some  among  us  assume  to  be 
"outgrown."  They  have  tired  of  the  splendid  preeminence 
of  the  greatest  of  republics.  Like  the  people  of  Israel 
they  would  have  theirs  as  other  nations  are.  They  are  am- 
bitious for  it  to  become  what  they  are  pleased  to  call  a 
"World  Power."  To  this  end,  they  seek  to  restrict  the 
authority  of  the  Constitution  to  the  States,  and  to  have 
the  President  and  Congress  exercise  powers  derived  under 
the  Constitution  as  a  basis  of  extra-constitutional  action. 
In  a  word,  they  propose  to  have  a  republic  at  home  and  an 
empire  abroad.  This  calls  for  a  dual  government  at 
Washington,  half  representative  and  half  despotic  in 
character.  A  government  which  is  but  an  expression  of 
the  sovereignty  of  the  people  is  to  become  one  having  both 
delegated  and  inherent  powers. 

The  danger  involved  in  these  startling  proposals  is  by 
no  means  imaginary.  We  are  already  face  to  face  with 
an  old  question  —  one  that  we  long  supposed  to  be  forever 
settled  for  Americans.  Are  the  powers  of  government 
conferred  by  the  people,  or  are  they  inherent  in  the  king  ? 
It  has  been  truly  said  that  the  essence  of  monarchy  is  not 
so  much  the  presence  of  the  king  as  the  absence  of  the 
people  from  all  the  important  transactions  of  government. 

Congress  and  the  President  are  merely  agents  of  the 
people.  They  act  under  the  authority  of  the  constitution  to 
carry  out  its  expressed  purposes.    If  it  extends  only  to  the 

254 


REPUBLIC  OR  EMPIRE 

territorial  limits  of  the  States,  they  are  without  power  be- 
hind such  limits.  To  say  that  officials  created  by  the  people 
may  exercise  powers  conferred  upon  them  by  the  constitu- 
tion to  do  things  without  its  purposes  and  beyond  its 
control,  is  to  say  that  a  stream  may  rise  higher  than  its 
source.  To  say  that  the  President  and  Congress  may  use 
the  forces  and  revenues  of  the  United  States  to  acquire 
territory  which  shall  not  be  subject  to  the  constitution  as 
the  supreme  law  of  the  land,  is  to  say  that  they  may 
exercise  powers  acquired  under  the  Constitution  for  extra- 
constitutional  ends,  that  they  may  employ  the  public 
revenues,  forces,  and  authority  for  other  than  public 
purposes.  If  only  their  action  within  the  States  is  con- 
trolled by  the  Constitution,  if  they  may  act  beyond  the 
States  at  will  and  without  restraint,  then  their  will  and 
not  the  Constitution  is  the  supreme  law.  If  the  Constitu- 
tion is  to  remain  the  fundamental  law  of  the  land,  it  can 
never  under  whatever  pretence  be  admitted  that  officials 
holding  under  it  may  act  beyond  the  limits  of  its  authority. 
The  people  of  the  United  States  are  sovereign.  Their 
government  is  but  an  agent  exercising  delegated  powers. 
Its  several  departments  can  exercise  no  powers  which  are 
not  delegated.  All  powers  not  delegated  are  reserved  by 
the  people  to  themselves.  A  self-governing  people  cannot 
confer  on  its  governmental  agencies  authority  to  rule  over 
others.  The  might  of  a  people,  no  more  than  that  of  a 
king,  is  a  warrant  to  reign.  A  representative  government 
can  act  only  for  those  represented.  It  cannot  also  rule 
others  without  ceasing  to  be  merely  representative.  Abra- 
ham  Lincoln   in  memorable   words   declared   that   "this 

255 


ESSAYS  AND  ADDRESSES 

government  cannot  endure  permanently  half  slave  and 
half  free."  Under  his  splendid  leadership  the  Union 
ceased  to  be  divided.  It  is  for  us  to  decide  whether  it 
shall  be  again  divided,  whether  it  shall  be  half  republic 
and  half  empire. 

Thus  we  see  that  the  proposal  to  restrict  the  authority 
of  the  Constitution  to  the  States,  in  order  like  certain  others 
to  have  "crown  colonies"  and  "subjects,"  involves  a  funda- 
mental change  in  our  institutions.  A  government  must 
have  and  execute  powers.  These  must  be  derived  from, 
and  exercised  subject  to,  the  consent  of  the  governed,  or 
they  must  be  self-assumed  and  exercised  without  restraint. 
They  must  proceed  from  the  people  to  a  governmental 
agency,  or  they  must  be  inherent  in  the  government  itself. 
Heretofore  our  government  has  been  solely  charged  with 
the  execution  of  powers  conferred  by  the  governed.  It 
has  exercised  none  but  delegated  authority.  It  is  now 
seriously  proposed  that  within  the  States  it  shall  continue 
in  the  exercise  of  this  authority;  and,  in  addition,  that  it 
shall  assume  and  exercise  despotic  power  over  the  terri- 
tories and  such  colonial  dependencies  as  it  may  choose  to 
acquire.  It  is  to  represent  democracy  in  the  States  and 
stand  for  absolutism  in  its  dependencies.  With  one  hand 
it  will  administer  for  a  "superior  race"  the  blessings  of 
free  government;  with  the  other  it  will  bestow  upon 
"lesser  breeds  without  the  law"  such  measures  of  good 
government  as  it  deems  them  fit  to  enjoy.  In  its  capacity 
as  an  agency  of  a  free  people,  it  will  conserve  rights 
guaranteed  to  them  by  the  Constitution;  as  the  vanguard 
of  returning  despotism,  it  will  confer  favors  on  "inferior 

256 


REPUBLIC  OR  EMPIRE 

races."  The  undisguised  basis  of  this  policy  is  inequahty 
among  men.  Its  purpose  is  to  stay  the  hands  of  progress, 
to  escape  from  the  consequences  of  democracy. 

The  parts  of  this  dual  government  cannot  remain  dis- 
tinct. They  will  act  and  react  upon  each  other.  It  may 
be  conceded  that  our  "assimilation"  of  subject  peoples,  so 
far  as  it  goes,  will  be  more  or  less  "benevolent,"  that  the 
"moral  rights"  of  the  natives  of  the  islands,  which  Mr. 
Root  admits  to  be  limitations  upon  his  proposed  despotism, 
will  be  somewhat  observed;  and  that  the  government  be- 
stowed from  Washington  upon  them  will  not  be  wholly 
bad.  On  the  other  hand,  it  will  not  do  to  forget  that  the 
United  States  is  to  be  the  military  base  of  the  new  despot- 
ism; that  we,  the  people,  are  to  furnish  the  enormous 
revenues  and  powerful  forces  needed  to  acquire  and  main- 
tain colonial  dependencies;  and  that,  as  it  becomes  more 
evident  that  arbitrary  power  is  much  less  tedious  in  its 
operation  than  are  the  slow  processes  through  which  gov- 
ernment by  public  opinion  works  out  its  results,  the 
present  ill-concealed  impatience  of  constitutional  restraints 
will  grow  until  only  the  forms  of  representative  govern- 
ment remain.  Despotism  and  democracy  cannot  exist 
together.  Reversion  to  despotism  means  the  surrender  of 
democracy. 

We  already  see,  in  the  vast  increase  of  unrestrained 
executive  activity,  the  greatest  danger  to  constitutional 
government.  Under  ordinary  conditions  the  power  of  the 
President  within  its  scope  is  well  nigh  absolute.  Prof. 
Simeon  E.  Baldwin  of  Y.ale  has  recently  pointed  out 
"that  of  the  leading  powers  of  the  world,  two,  only,  in 

257 


ESSAYS  AND  ADDRESSES 

our  time,  represent  the  principal  of  political  absolutism, 
and  enforce  it  by  one  man's  hand.  They  are  Russia  and 
the  United  States."  To  the  extent  that  we  permit  one  man 
to  exercise  uncontrolled  power  we  resort  to  the  dictator. 

Mr.  McKinley  has  gone  to  great  lengths  in  introducing 
at  Washington  the  methods  of  absolutism.  He  promptly 
relegated  to  the  rear  the  issue  upon  which  he  was  chosen, 
violated  the  pledges  of  his  party  platform  as  respects  our 
foreign  policy,  committed  the  country  to  a  revolutionary 
course,  deliberately  created  a  state  of  war  in  the  Philip- 
pines, debauched  the  civil  service  to  promote  the  adventure, 
and  demanded  of  all  citizens  a  suspension  of  judgment 
and  unanimous  support  while  he  sees  fit  to  continue  the 
fighting,  or  until  further  notice  from  him.  The  powers 
which  he  exercises  to-day  in  Cuba,  in  Porto  Rico,  and  in 
the  Philippines  are  those  of  a  military  despot. 

A  comparison  of  the  Republican  platform  of  1896  with 
the  entire  action  of  the  present  administration  will  disclose 
how  absolute  are  the  powers  which  Mr.  McKinley  has  as- 
sumed. The  point  here  is  that  an  imperial  policy  vastly 
increases  the  opportunity  and  even  the  necessity  for  the 
exercise  of  uncontrolled  executive  power.  If  we  are  to 
have  "crown  colonies"  and  "subjects,"  we  must  likewise 
have  a  despotic  executive. 

Let  us,  however,  not  deceive  ourselves.  Liberty  is  not 
mocked.  The  Constitution  still  lives  as  the  supreme  law 
of  the  land.  This  is  by  no  means  its  first  trial.  It  survived 
the  storm  and  stress  of  the  slavery  conflict,  in  the  words 
of  James  Bryce  coming  "out  of  the  furnace  of  civil  war 
with  scarce  the  smell  of  fire  upon  it."     Those,  who  mys- 

258 


REPUBLIC  OR  EMPIRE 

teriously  intimate  that  "some  way  will  be  found  to  get 
around  the  Constitution"  in  pursuit  of  empire,  have  yet 
to  reckon  with  the  Supreme  Court  of  the  United  States. 
That  great  tribunal  is  by  no  means  likely  to  abdicate  its 
functions.  It  may  be  relied  upon  to  make  short  work  of 
the  extraordinary  proposition  that  its  jurisdiction  extends 
only  to  the  forty-five  States,  leaving  Congress  and  the 
President  free  to  act  at  will  beyond  their  limits. 

The  Supreme  Court  has  again  and  again  exercised 
jurisdiction  over  the  territory  of  the  United  States  lying 
outside  the  States.  Chief  Justice  Marshall  himself  has 
defined  the  term  "United  States"  as  "the  name  given  to 
our  great  republic,  which  is  composed  of  states  and  terri- 
tories." 

We  may,  therefore,  conclude  that  all  the  islands  ac- 
quired by  the  United  States  and  made  permanently  part 
of  its  territory  will  be  subject  to  its  Constitution  and  gen- 
eral laws;  that  their  inhabitants,  at  least  those  hereafter 
born,  will  be  citizens  of  the  United  States  and  of  the  sev- 
eral States  in  which  they  choose  to  reside,  and  as  such 
privileged  to  come  and  go  at  will  throughout  the  entire 
country;  that  their  government  by  Congress  will  be  sub- 
ject to  the  fundamental  limitations  in  favor  of  personal 
and  civil  rights,  which  are  formulated  in  the  Constitution ; 
that  the  tariff  wall  which  we  have  so  long  maintained  about 
the  United  States  must  be  extended  to  embrace  them, 
giving  to  them  absolute  free  trade  with  us;  and  that,  as 
the  Constitution  is  not  based  on  inequality  among  men, 
they  cannot  be  held  as  colonies  and  their  people  treated  as 
subjects. 

259 


ESSAYS  AND  ADDRESSES 

The  final  question  is  whether  the  Constitution  ought  to 
provide  for  colonial  dependencies.  If  so,  it  should  be 
amended  to  this  end.  All  our  constitutional  amendments 
have  had  for  their  object  the  better  protection  of  the  rights 
of  the  citizen.  Each  new  amendment  has  directly  or  in- 
directly added  new  guarantees  for  the  security  of  personal 
rights.  Not  one  has  tended  to  promote  absolutism.  Shall 
the  movement,  begun  by  the  adoption  of  the  Constitution 
and  continued  in  unbroken  progress  by  its  amendments, 
now  be  reversed?  Is  it  not  rather  late  for  us  to  discover 
that  government  derives  its  just  powers  from  some  of  the 
governed?  Shall  we,  at  this  late  day,  concede  to  Congress 
discretionary  power  to  make  the  constitution  and  laws  of 
the  United  States  general  or  special?  Shall  we  subject 
the  personal  rights  and  immunities  of  citizens  to  the  dis- 
cretion of  Congress?  Are  we  prepared  to  let  Congress 
say  in  what  parts  of  the  United  States  speech  shall  be  free? 
Shall  Congress  determine  to  what  extent  imposts,  duties, 
and  excises  shall  be  uniform?  Are  we  ready  to  surrender, 
or  even  impair  in  any  particular,  the  bill  of  rights  ?  Above 
and  beyond  all,  shall  we  now  by  evasion,  construction,  or 
amendment,  deliberately  embody  in  our  fundamental  law 
the  principle  of  inequality  among  men?  If  so,  we  are 
false  to  our  heritage,  unworthy  of  our  birthright,  and  de- 
serve to  be  ourselves  enslaved.  What  we  cannot  do  by 
way  of  amendment  of  our  fundamental  law  we  must  not 
permit  to  be  accomplished  by  its  evasion. 

It  is  strongly  urged  upon  us  that  "right  or  wrong  this 
thing  is  going  to  succeed,"  and  that  we  should  join  with 
those  who  would  make  the  best  of  the  retention  of  the 

260 


REPUBLIC  OR  EMPIRE 

Spanish  islands.  It  is  especially  objected  that  our  oppo- 
sition is  vexatious  and  even  treasonable.  We  decline  this 
invitation  and  here  give  notice  of  our  purpose  to  maintain 
free  speech  in  America,  even  in  the  presence  of  an  imperial 
executive  who  demands  exemption  from  public  criticism. 
We  regard  what  has  happened  in  the  Philippines  as 
wholesale  murder  and  larceny;  we  have  had  no  part  in  it; 
and  we  refuse  to  become  accomplices  after  the  fact. 

We  have  come  to  the  city  of  the  Declaration  of  Inde- 
pendence to  drink  deep  at  this  fountain  of  human  liberty. 
We  here  renew  our  faith  in  self-government  and  pledge 
ourselves  to  do  all  that  in  us  lies  for  its  preservation.  We 
still  cherish  the  principles  for  which  Washington  fought 
and  Lincoln  died.  We  hold  that  taxation  without  repre- 
sentation is  still  tyranny.  We  declare  relentless  war  on 
"the  miners  and  sappers  of  returning  despotism."  We 
will  neither  compromise  nor  surrender.  "Our  reliance  is 
in  the  love  of  liberty  which  God  has  planted  in  us.  Our 
defence  is  in  the  spirit  which  prizes  liberty  as  the  heritage 
of  all  men  in  all  lands  everywhere." 


261 


THE  CONSTITUTION  AND  INEQUALITY,  OF 

RIGHTS* 

rp  HAT  the  United  States  may  acquire  territory,  as  raw 
material  for  future  States,  is  unquestioned ;  that  the 
United  States  acquired  whatever  title  Spain  then  had  to 
Porto  Rico  and  the  Philippines,  by  the  Treaty  of  Paris, 
is  conceded.  What  is  disputed  is  the  novel  claim  that 
the  United  States  may  adopt  and  enforce,  in  the  govern- 
ment of  these  islands,  the  principle  of  inequality  of  rights. 
All  our  prior  acquisitions  of  territory  were  sought  for 
settlement  by  our  people,  to  become  the  home  of  our  insti- 
tutions, to  expand  the  domain  of  equal  rights,  to  enlarge 
the  area  of  constitutional  liberty. 

A  vision  of  equality  of  rights  was  the  inspiration  of  our 
national  life.  The  immortal  declaration  that  all  men  are 
created  equal  —  that  they  are  endowed  by  the  Creator  with 
certain  inalienable  rights,  among  which  are  life,  liberty, 
and  the  pursuit  of  happiness  —  fitly  expressed  the  ideal  of 
democracy.  To  achieve  this  ideal  we  have  striven  for  more 
than  a  century.  In  its  pursuit  we  have  organized,  estab- 
lished constitutions,  legislated,  administered. 

The  great  purpose  of  the  Constitution  was  to  establish 
equality  of  personal  rights.  To  this  end  it  commands 
that  commerce  be  free  and  its  necessary  regulations  uni- 
form throughout  the  United  States.  Authority  to  tax 
rests  upon  representation.    Congress  may  lay  and  collect 

*  Reprinted  from  **  The  Yale  Law  Journal,"  February,  1901. 

262 


INEQUALITY  OF  RIGHTS 

taxes,  duties,  imposts,  and  excises;  but  taxes  must  be  ac- 
cording to  population,  and  "all  duties,  imposts,  and  ex- 
cises shall  be  uniform  throughout  the  United  States."  All 
exports  are  exempt  from  duties.  Laws  affecting  natural- 
ization and  bankruptcies  must  be  uniform.  All  enjoy  the 
privilege  of  the  writ  of  habeas  corpus,  and  are  alike  pro- 
tected from  bills  of  attainder  and  ex  post  facto  laws.  All 
are  to  be  mere  citizens,  free  from  the  overshadowing  in- 
fluence of  a  nobility.  The  revenues  of  the  people  may  be 
drawn  from  the  public  treasury  only  by  means  of  appro- 
priations made  by  law.  The  courts  exist  for  all,  including 
even  aliens,  without  discrimination.  All,  when  charged 
with  crime,  are  alike  protected  in  their  right  of  trial  by 
jury  where  the  crime  was  committed.  The  citizens  of  each 
State  are  entitled  to  all  the  privileges  and  immunities  of 
citizens  in  the  several  States.  Nothing  is  supreme  but  the 
law  of  the  land. 

Such,  in  substance,  was  the  Constitution  as  first 
adopted.  It  contemplated  a  government  of  uniform  laws 
over  citizens  possessing  equal  rights.  Even  its  guar- 
antees were  not  accepted  as  adequate.  The  victors  in 
a  struggle  of  a  thousand  years  against  arbitrary  power 
were  unwilling  to  leave  anything  to  implication.  The 
people  demanded  that  the  results  of  that  struggle 
should  be  embodied  in  their  fundamental  law.  Hence 
the  bill  of  rights  was  at  once  added  by  amend- 
ment. Thus,  by  the  amended  Constitution,  all  white 
men  secured  freedom  of  religion;  freedom  of  speech; 
freedom  of  the  press;  freedom  of  assembly;  the  right 
of  petition;   the   right   to   bear   arms;   the   right   to   be 

263 


ESSAYS  AND  ADDRESSES 

secure  in  their  persons,  houses,  papers,  and  effects;  the 
right  of  trial  by  jury  in  criminal  proceedings  and  in  suits 
at  common  law ;  exemption  from  prosecution  for  infamous 
crimes,  unless  on  presentment  or  indictment  of  a  grand 
jury;  security  from  being  placed  twice  in  jeopardy  for  the 
same  offence;  security  from  being  required  in  criminal 
causes  to  be  witnesses  against  themselves;  the  right  of 
speedy  and  public  trial  by  an  impartial  jury  in  all  criminal 
prosecutions  within  the  State  and  district  where  the  crime 
is  committed;  the  right,  when  charged  with  crime,  to  be 
informed  of  the  nature  and  cause  of  the  accusation,  to  be 
confronted  with  the  witnesses  for  the  prosecution,  to  have 
compulsory  process  to  compel  the  attendance  of  witnesses 
in  their  favor,  and  to  have  the  assistance  of  counsel  for 
their  defence;  freedom  from  excessive  bail,  from  excessive 
fines,  and  from  cruel  and  unjust  punishments;  freedom 
from  the  taking  of  private  property  for  public  use  without 
just  compensation;  and  freedom  from  deprivation  of  life, 
liberty,  or  property  without  due  process  of  law. 

Even  this  inventory  of  personal  rights,  each  term  of 
which  is  the  title  to  a  chapter  in  the  story  of  constitutional 
liberty,  was  not  regarded  as  inclusive.  The  Ninth  Amend- 
ment states  that  "The  enumeration  in  the  Constitution,  of 
certain  rights,  shall  not  be  construed  to  deny  or  disparage 
others  retained  by  the  people."  Still  the  ideals  of  equality 
and  of  government  by  consent  were  but  imperfectly  real- 
ized. Human  slavery,  a  monstrous  anachronism,  survived 
to  give  the  lie  to  our  fair  professions  of  equality.  A  peo- 
ple that  had  renounced  the  institutions  of  king  and  no- 
bility could  not  long  look  upon  slavery  without  moral 

264 


INEQUALITY  OF  RIGHTS 

disquietude.  Having  escaped  an  aristocracy,  they  could 
not  long  tolerate  slavery.  The  noble  vision  of  equality  of 
rights  vouchsafed  to  the  fathers  inspired  their  children  to 
strive  for  its  realization.  The  Revolution  witnesses  what 
the  fathers  dared  that  they  might  set  up  the  ideal  of  equal- 
ity. The  mighty  tragedy  of  civil  war  forever  records 
what  their  sons  suffered  to  reahze  that  ideal. 

The  revolutionists  at  the  outset  declared  their  splendid 
vision  of  equality  of  rights.  In  their  hour  of  triumph 
they  paused  to  set  up  a  tabernacle  to  liberty,  to  record 
in  the  people's  grant  of  power  to  a  government  express- 
ive of  their  authority  the  personal  rights  already  won. 
In  their  hour  of  triumph  the  victors  of  1865  placed  in 
the  Constitution  new  guarantees  of  equahty. 

The  Thirteenth  Amendment  declares  that  neither  slav- 
ery nor  involuntary  servitude,  except  as  a  punishment  for 
crime  whereof  the  party  shall  have  been  duly  convicted, 
shall  exist  within  the  United  States,  or  any  place  subject 
to  their  jurisdiction.  The  Fourteenth  Amendment  makes 
all  persons  born  or  naturalized  in  the  United  States  citi- 
zens thereof  and  of  the  State  wherein  they  reside.  It 
also  provides  that  no  State  shall  make  or  enforce  any  law 
which  shall  abridge  the  privileges  or  immunities  of  citizens 
of  the  United  States;  nor  deprive  any  person  of  life, 
liberty,  or  property,  without  due  process  of  law;  nor  deny 
to  any  person  within  its  jurisdiction  the  equal  protection 
of  the  laws.  The  Fifteenth  Amendment  declares  that  the 
right  of  citizens  of  the  United  States  to  vote  shall  not  be 
denied  or  abridged  on  account  of  race,  color,  or  previous 
condition  of  servitude. 

265 


ESSAYS  AND  ADDRESSES 

The  Constitution  of  the  fathers  established  the  equality 
of  white  men.  The  great  charter  of  liberty,  as  it  came 
from  the  furnace  of  civil  war,  proclaimed  equality  for  all 
men  irrespective  of  race  or  color.  Thus  equality  of  rights, 
the  ideal  of  the  declaration,  became  the  achievement  of  the 
Constitution.  Thus  a  lofty  sentiment  was  realized  in  the 
fundamental  law  of  the  land. 

The  events  of  two  years  have  brought  us  some  grave 
questions.  Shall  the  evolution  of  American  liberty  be  re- 
versed? Shall  the  movement,  begun  by  the  adoption  of 
the  Constitution  and  continued  in  unbroken  progress  in 
its  amendments,  be  stayed?  Shall  we  no  longer  interpret 
the  Constitution  in  the  terms  of  liberty?  Shall  the  Presi- 
dent and  Congress  govern  men  without  their  consent? 
Shall  the  representatives  of  a  free  people  act  for  others 
than  those  represented?  Shall  the  creatures  of  the  Consti- 
tution exercise  any  power  anywhere  outside  and  in 
disregard  of  its  limitations?  Shall  we  make  rights  a  mere 
matter  of  might  and  locahty?  Shall  we  make  inequality  of 
rights,  by  amendment  or  evasion  of  the  Constitution,  law- 
ful under  the  American  flag? 

The  "grave  departure  from  right  principles"  which 
gives  rise  to  these  inquiries  is  not  a  mere  remote  possibility. 
The  executive  and  legislative  branches  of  the  government 
have  done  and  are  doing  their  utmost  to  make  it  an  ac- 
complished fact.  It  is  the  essence  of  the  Porto  Rican  legis- 
lation. It  lies  at  the  bottom  of  the  administration's  Phil- 
ippine policy.  Thousands  of  lives  have  been  sacrificed  and 
hundreds  of  millions  of  the  people's  earnings  squandered 
in  its  pursuit.     A  vast  naval  and  military  establishment, 

266 


INEQUALITY  OF  RIGHTS 

one  of  the  costliest  in  the  world,  is  being  provided  by  a 
perversion  of  constitutional  powers  as  a  means  for  a  career 
of  conquest.  Each  step  is  accompanied  by  an  apology, 
coupled  with  a  protest  that  it  does  not  involve  the  next. 
To-day  the  President,  backed  by  the  Congress,  stands  at 
the  bar  of  the  Supreme  Court  demanding  complete  ex- 
emption from  constitutional  control  in  the  government  of 
the  territories  of  the  United  States  and  in  the  acquisition 
of  unlimited  possessions  for  other  than  constitutional  pur- 
poses. This  demand,  if  granted,  means  equal  rights  for 
all  under  the  Constitution  while  within  the  States,  and  in- 
equality of  rights  for  all  under  a  congressional  absolutism 
when  outside  the  States. 

The  Secretary  of  War,  in  his  report  for  1899,  says: 

I  assume  .  .  .  that  the  United  States  has  all  the 
powers  in  respect  of  a  territory  it  has  thus  acquired,  and 
the  inhabitants  of  that  territory,  which  any  nation  in  the 
world  has  in  respect  of  territory  which  it  has  acquired ;  that, 
as  between  the  people  of  the  ceded  islands  and  the  United 
States,  the  former  are  subject  to  the  complete  sovereignty 
of  the  latter,  controlled  by  no  legal  limitations  except  those 
which  may  be  found  in  the  treaty  of  cession ;  that  the  peo- 
ple of  the  islands  have  no  right  to  have  them  treated  as 
States,  or  to  have  them  treated  as  the  territories  previ- 
ously held  by  the  United  States  have  been  treated,  or  to 
assert  a  legal  right  under  the  provisions  of  the  Constitu- 
tion .  .  .  or  to  assert  against  the  United  States  any 
legal  right  whatever  not  found  in  the  treaty. 

"The  Outlook,"  a  leading  exponent  of  the  new  policy, 
declares  that  the  United  States  "must  take  such  place  as 
its  position,  its  character,  and  its  powers  entitle  it  to  as- 
sume among  the  nations  of  the  earth;  ....  that  it 
ought  not  to  confine  its  interests  or  limit  its  duties  by  any 

267 


ESSAYS  AND  ADDRESSES 

geographical  consideration  whatsoever;  that  it  ought  to 
share  with  the  world  powers  in  the  government  of  the 
world." 

These  quotations  fairly  represent  the  thought  and  pur- 
pose of  those  who  would  reintroduce  into  our  system  the 
doctrine  of  inequality  of  rights.  True,  they  have  again  and 
again  irrelevantly  declared  it  to  be  their  intention  to  exer- 
cise absolute  power  over  the  inhabitants  of  the  ceded  islands 
in  a  spirit  of  subjective  benevolence.  Thus,  Secretary 
Root,  in  the  report  above  quoted,  adds : 

The  people  of  the  ceded  islands  have  acquired  a  moral 
right  to  be  treated  by  the  United  States  in  accordance  with 
the  underlying  principles  of  justice  and  freedom,  which  we 
have  declared  in  our  Constitution,  which  are  the  essential 
safeguards  of  every  individual  against  the  powers  of  gov- 
ernment, not  because  those  provisions  were  enacted  for 
them,  but  because  they  are  essential  limitations  inherent  in 
the  very  existence  of  American  government. 

Mr.  McKinley  himself  continues  to  make  profuse 
though  vague  promises  in  recognition  of  what  Mr.  Root 
concedes  to  be  the  "moral  right"  of  the  Filipinos  to  be 
treated  by  the  United  States  in  accordance  with  the  prin- 
ciples of  justice  and  freedom.  From  his  early  promise  of 
"a  government  which  will  bring  them  blessings"  down  to 
the  recitals  in  his  last  annual  message,  these  new  "wards 
of  the  nation"  may  read  of  "the  benefits  of  liberty  and 
good  government"  which  he  says  shall  be  theirs  "in  the 
interests  of  humanity,"  of  the  moral  rights  which  by  grace 
they  are  to  acquire.  By  military  order,  through  the  Secre- 
tary of  War,  he  exhorts  his  present  Philippine  commission- 
ers to  "bear  in  mind  that  the  government  which  they  are 

268 


INEQUALITY  OF  RIGHTS 

establishing  is  designed  not  for  our  satisfaction,  or  for  the 
expression  of  our  theoretical  views,  but  for  the  happiness, 
peace,  and  prosperity  of  the  people  of  the  Philippine  Is- 
lands." 

Mr.  McKinley,  by  the  same  order,  declares  it  to  be 
his  paternal  will  that  — 

the  people  of  the  islands  be  made  plainly  to  understand 
that  there  are  certain  great  principles  of  government,  which 
have  been  made  the  basis  of  our  governmental  system, 
which  we  deem  essential  to  the  rule  of  law  and  the  main- 
tenance of  individual  freedom,  and  of  which  they  have,  un- 
fortunately, been  denied  the  experience  possessed  by  us; 
that  there  are  also  certain  practical  rules  of  government 
which  we  have  found  to  be  essential  to  the  preservation  of 
these  great  principles  of  liberty  and  law;  and  that  these 
principles  and  these  rules  of  government  must  be  estab- 
lished and  maintained  in  their  islands  for  the  sake  of  their 
liberty  and  happiness,  however  much  they  may  conflict  with 
the  customs  or  laws  of  procedure  with  which  they  are  famil- 
iar, .  .  .  Upon  every  division  and  branch  of  the 
government  of  the  Philippines,  therefore,  must  be  imposed 
these  inviolable  rules : 

That  no  person  shall  be  deprived  of  life,  liberty,  or 
property  without  due  process  of  law ;  that  private  property 
shall  not  be  taken  for  public  use  without  just  compensa- 
tion; that  in  all  criminal  prosecutions  the  accused  shall  en- 
joy the  right  to  a  speedy  and  public  trial,  to  be  informed 
of  the  nature  and  cause  of  the  accusation,  to  be  confronted 
with  the  witnesses  against  him,  to  have  compulsory  process 
for  obtaining  witnesses  in  his  favor,  and  to  have  the  assist- 
ance of  counsel  for  his  defence;  that  excessive  bail  shall 
not  be  required,  nor  excessive  fines  imposed,  nor  cruel  and 
unusual  punishments  inflicted;  that  no  person  shall  be  put 
twice  in  jeopardy  for  the  same  offense,  or  be  compelled  in 
any  criminal  case  to  be  a  witness  against  himself;  that  the 
right  to  be  secure  against  unreasonable  searches  and  seiz- 
ures shall  not  be  violated;  that  neither  slavery  nor  involun- 

269 


ESSAYS  AND  ADDRESSES 

tary  servitude  shall  exist  except  as  a  punishment  for 
crime;  that  no  bill  of  attainder  or  ex  post  facto  law  shall 
be  passed;  that  no  law  shall  be  passed  abridging  the  free- 
dom of  speech  or  of  the  press,  or  the  rights  of  the  people 
to  peaceably  assemble  and  petition  the  government  for  a 
redress  of  grievances ;  that  no  law  shall  be  made  respecting 
an  establishment  of  religion  or  prohibiting  the  free  exer- 
cise thereof;  and  that  the  free  exercise  and  enjoyment  of 
religious  profession  and  worship  without  discrimination 
or  preference  shall  forever  be  allowed. 

These  representative  citations  are  here  given  to  exhibit 
the  spirit  in  which  it  is  proposed  to  bestow  what  is  called 
"good  government"  on  all  citizens  of  the  United  States 
while  outside  the  States.  Upon  them,  as  "wards  of  the 
nation,"  are  to  fall  by  grace  selected  "moral  rights"  in 
name  akin  to  some  of  the  equal  and  inalienable  rights  of 
citizens  while  within  the  States. 

Mr.  Hoar  has  made  final  answer  to  the  proposal  to  be- 
stow upon  these  new  "wards"  by  grace  some  part  of  what 
is  the  right  of  every  free  man.  In  his  great  speech  of  April 
seventeenth  in  the  senate,  he  says: 

Our  imperialistic  friends  seem  to  have  forgotten  the 
use  of  the  vocabulary  of  liberty.     They  talk  about  giving 

good  government Why,  Mr.  President,  that 

one  phrase  conveys  to  a  free  man  and  a  free  people  the 
most  stinging  of  insults.  In  that  little  phrase,  as  in  a  seed, 
is  contained  the  germ  of  all  despotism  and  of  all  tjnranny. 
Government  is  not  a  gift.  Free  government  is  not  to  be 
given  by  all  the  blended  powers  of  earth  and  heaven.  It 
is  a  birthright.  It  belongs,  as  our  fathers  said,  and  as  their 
children  said,  ...  to  human  nature  itself.  There  can 
be  no  good  government  but  self-government. 

Whence  comes  the  authority  of  any  man,  or  group  of 
men,  to  select  from  and  quarry  out  of  the  Constitution 

270 


CONSTITUTION  AND   INEQUALITY 

rights  for  gracious  bestowal  on  the  people  of  the  territories 
and  islands  of  the  United  States?  By  what  warrant  does 
any  man,  or  group  of  men,  in  America  presume  to  make 
of  the  inalienable  rights  of  free  men  a  mere  question 
of  might,  only  a  matter  of  locality?  Whence  does  any 
man,  or  group  of  men,  derive  authority  to  place  limita- 
tions on  the  application  of  the  Bill  of  Rights,  to  deny 
equality  of  rights  under  the  Constitution  of  the  United 
States? 

Those  who  in  our  time  profess  inherent  authority  to 
make  of  liberty  itself  a  gift  to  other  men  now  come,  as  ty- 
rants have  ever  come,  with  honeyed  words  upon  their  lips. 
If  we  may  credit  some  fine  professions  now  current  in  high 
places,  the  denial  of  equality  of  constitutional  rights  to  the 
people  of  the  territories  and  islands  of  the  United  States 
is  merely  to  clear  the  way  for  the  bestowal  of  analogous 
"moral  rights"  at  such  times  and  in  such  doses  as  the  donors 
in  their  superior  wisdom  deem  the  donees  strong  enough 
to  bear.  Equality  of  rights  is  not  denied  to  the  inhabitants 
of  the  Spanish  islands  in  order  by  grace  to  bestow  upon 
them  the  immunities  and  privileges  enjoyed  under;  the  Con- 
stitution by  the  citizens  of  the  States.  On  the  contrary, 
equality  of  rights  is  denied  in  order  that  the  President  and 
Congress  may  govern  the  people  of  these  islands  by  power 
as  absolute  as  is  anywhere  known.  Indeed,  Mr.  Root,  as 
we  have  seen,  declares  that  the  United  States  (meaning 
the  President  and  Congress)  have  all  the  powers  which  any 
nation  in  the  world  has  in  respect  to  acquired  territory. 
That  is,  they  may  govern  it  by  power  as  absolute  as  that 
wielded  by  the  Russian  czar. 

271 


ESSAYS  AND  ADDRESSES 

Note  carefully  the  studied  omissions  from  Mr.  Me- 
Kinley's  expurgated  version  of  the  bill  of  rights  set  out 
above.  By  these  omissions  the  Filipinos  are  denied  many 
of  the  most  sacred  rights  of  free  men.  They  may  be  taxed 
without  representation  and  without  regard  to  uniformity. 
Their  revenues  may  be  expended  without  authority  of  pub- 
lic law.  They  are  denied  the  right  to  bear  arms.  They  are 
denied  the  right  of  trial  bj^  jury  in  criminal  proceedings  as 
well  as  in  suits  at  law.  They  may  be  prosecuted  for  infam- 
ous crimes  without  presentment  or  indictment  of  a  grand 
jury.  The  speedy  and  public  trial  which  is  promised  may 
be  by  court-martial  ordered  to  sit  anywhere,  however  re- 
mote from  the  place  where  the  crime  was  committed.  The 
privilege  of  the  writ  of  habeas  coupus  is  denied.  There  is 
for  them  no  equal  protection  of  the  laws. 

Even  the  "moral  right"  of  the  new  "wards  of  the 
nation"  to  be  treated  in  accordance  with  the  principles  of 
justice  and  freedom  is,  it  seems,  subject  to  important  and 
wholly  arbitrary  limitations.  The  power  to  bestow  in- 
volves the  power  to  deny.  The  power  to  grant  involves  the 
power  to  withdraw.  What  may  be  granted  or  withheld 
may  be  withdrawn  or  abridged. 

The  policy  thus  disclosed  and  now  applied  offers  to  the 
inhabitants  of  the  ceded  islands  no  shield  but  benevolence 
against  wrong,  no  constitutional  protection,  no  hope  of 
liberty.  It  seeks  by  force  to  establish  government  with- 
out consent,  taxation  without  representation,  tyranny  by 
the  crowd.  It  means  the  government  of  men  by  arbitrary 
power.    This  is  imperialism. 

The  novel  assumption  that  mere  agencies  of  constitu- 

272 


INEQUALITY  OF  RIGHTS 

tional  government  may  exercise  powers  beyond  the  do- 
main of  the  constitution,  and  the  proposal  by  this  means 
to  reintroduce  into  our  system  the  principle  of  inequality 
of  rights,  must  now  meet  the  scrutiny  of  the  Supreme 
Court  of  the  United  States.  That  great  tribunal  has  again 
and  again  treated  the  Constitution  as  applicable  to  the  ter- 
ritories, and  therein  applied  it  for  the  protection  of 
personal  rights.  Chief  Justice  Marshall  himself  has  de- 
fined the  term  "United  States"  to  be  "the  name  given  to 
our  great  republic,  which  is  composed  of  States  and  terri- 
tories."* 

The  court,  in  deciding  that  duties  collected  in  California 
after  its  cession  to  the  United  States  and  prior  to  the 
establishment  therein  of  a  collection  district  were  not  ille- 
gally exacted,  held  that :  "By  the  ratification  of  the  treaty, 
California  became  a  part  of  the  United  States";  that  com- 
merce "became  instantly  bound  and  privileged  by  the  laws 
which  Congress  had  passed  to  raise  a  revenue  from  duties 
on  imposts  and  tonnage";  that  "the  right  claimed  to  land 
foreign  goods  within  the  United  States  at  any  place  out 
of  a  collection  district,  if  allowed,  would  be  a  violation  of 
that  provision  in  the  Constitution  which  enjoins  that  all 
duties,  imposts  and  excises  shall  be  uniform  throughout  the 
United  States" ;  that  "there  was  nothing  in  the  condition 
of  California  to  exempt  importers  of  foreign  goods  into  it 
from  the  payment  of  the  same  duties  which  were  charge- 
able in  the  other  ports  of  the  United  States";  that  "the 
ratification  of  the  treaty  made  California  a  part  of  the 
United  States,  and  that  as  soon  as  it  became  so  the  territory 

*  Loughborough  vs.  Blake,  5  Wheat,,  315,  317. 

273 


ESSAYS  AND  ADDRESSES 

became  subject  to  the  acts  which  were  in  force  to  regulate 
foreign  commerce  with  the  United  States."  * 

A  distinction,  often  overlooked,  lies  between  personal 
and  political  rights.  Congress  possesses  the  same  general 
powers,  subject  to  like  limitations,  over  the  territories  and 
their  inhabitants  that  it  possesses  over  the  States  and  their 
inhabitants.  In  addition  to  these  general  powers,  it 
possesses  in  the  territories  the  same  powers,  subject  to  like 
limitations,  over  local  affairs  as  the  States  possess  over  local 
affairs.  Thus  Congress  holds  in  the  territories  the  sum  of 
national  and  local  legislative  powers,  subject  to  the  limita- 
tions of  the  Constitution. 

The  Supreme  Court,  as  late  as  1884,  said: 

The  personal  and  civil  rights  of  the  inhabitants 
of  the  territories  are  secured  to  them,  as  to  other  citizens,  by 
the  principles  of  constitutional  liberty  which  restrain  all  the 
agencies  of  government.  State  and  national;  their  politi- 
cal rights  are  franchises  which  they  hold  as  privileges  in 
the  legislative  discretion  of  the  Congress  of  the  United 
States.t 

The  court,  in  pursuance  of  this  distinction,  has  held  that 
"the  provisions  of  the  Constitution  relating  to  trials  by 
jury  for  crimes  and  to  criminal  processes  apply  to  the 
territories  of  the  United  States" ;t  that  Congress  in  legis- 
lating for  the  territories  and  the  District  of  Columbia,  is 
subject  to  those  fundamental  limitations  in  favor  of  per- 
sonal and  civil  rights  which  are  formulated  in  the  Constitu- 

*  Cross  vs.  Harrison,  16  How.,  164,  198. 
t Murphy  vs.  Ramsey,  114  U.  S.,  15. 

t  Thompson  vs.  Utah,  170  U.  S.,  343,  346;  Callan  vs.  Wilson,  127 
U.  S.,  540. 

274 


INEQUALITY  OF  RIGHTS 

tion  and  its  amendments ;  *  and  that  the  United  States, 
upon  "acquiring  territory  by  treaty  or  otherwise,  must  hold 
it  subject  to  the  Constitution  and  laws."t 

When  it  is  said  that  Congress  has  absolute  power  to 
legislate  respecting  the  territories  of  the  United  States, 
what  is  meant,  as  we  have  seen,  is  that  Congress  holds  the 
sum  of  national  and  local  legislative  powers  in  respect  of 
such  territories.  It  may  do  in  a  territory,  in  addition  to 
what  it  may  do  in  a  State,  what  the  people  of  a  State 
acting  through  their  general  assembly  may  do  in  that 
State.  The  Supreme  Court  has  held  that  the  form  of  gov- 
ernment to  be  established  in  a  territory  rests  in  the  discre- 
tion of  Congress — 

acting  within  the  scope  of  its  constitutional  authority,  and 
not  infringing  upon  the  rights  of  persons  or  rights  of  prop- 
erty of  the  citizen The  power  of  Congress 

over  the  person  or  property  of  a  citizen  can  never  be  a 
mere  discretionary  power  under  our  Constitution  and  form 
of  government.  The  powers  of  government  and  the  rights 
and  privileges  of  the  citizen  are  regulated  and  plainly  de- 
fined by  the  Constitution  itself.  And  when  the  territory 
becomes  a  part  of  the  United  States  the  federal  govern- 
ment enters  into  possession  in  the  character  impressed  upon 
it  by  those  who  created  it.  It  enters  upon  it  with  its  powers 
over  the  citizen  strictly  defined,  and  limited  by  the  constitu- 
tion, from  which  it  derives  its  own  existence,  and  by  virtue 
of  which  alone  it  continues  to  exist  and  act  as  a  government 
and  sovereignty.  It  has  no  power  of  any  kind  beyond  it; 
and  it  cannot,  when  it  enters  a  territory  of  the  United 
States,  put  off  its  character,  and  assume  discretionary  or 

*  Mormon  Church  vs.  United  States,  136  U.  S.,  1;  McAlhster  vs. 
United  States,  141  U.  S.,  174;  American  PubHshing  Society  vs.  Fisher, 
166  U.  S.,  464,  466. 

t  Pollard  vs.  Hagan,  3  How.,  312. 

275 


ESSAYS  AND  ADDRESSES 

despotic  powers  which  the  Constitution  has  denied  it.  It 
cannot  create  for  itself  a  new  character  separated  from  the 
citizens  of  the  United  States  and  the  duties  it  owes  them 
under  the  provisions  of  the  Constitution.  The  territory 
being  a  part  of  the  United  States,  the  government  and  the 
citizen  both  enter  it  under  the  authority  of  the  Constitu- 
tion, with  their  respective  rights  defined  and  marked  out; 
and  the  federal  government  can  exercise  no  power  over  his 
person  or  property,  beyond  what  that  instrument  confers, 
nor  lawfully  deny  any  right  which  it  has  reserved. 

The  powers  over  person  and  property  of  which  we 
speak  are  not  only  not  granted  to  Congress,  but  are  in 
express  terms  denied,  and  they  are  forbidden  to  exercise 
them.  And  this  prohibition  is  not  confined  to  the  States, 
but  the  words  are  general,  and  extend  to  the  whole  terri- 
tory over  which  the  Constitution  gives  it  power  to  legis- 
late.* 

The  court,  in  the  same  case,  says : 

A  power,  therefore,  in  the  general  government  to  ob- 
tain and  hold  colonies  and  dependent  territories,  over  which 
they  might  legislate  without  restriction,  would  be  inconsis- 
tent with  its  own  existence  in  its  present  f orm.t 

The  attempt,  by  the  terms  of  the  treaty  itself,  to  en- 
large the  powers  of  Congress  by  conferring  upon  it  power 
to  determine  "the  civil  rights  and  political  status  of  the 
native  inhabitants"  of  the  islands,  is  without  effect.  The 
Supreme  Court,  in  the  case  of  New  Orleans  vs.  United 
States,  X  says : 

The  government  of  the  United  States  is  one  of  limited 
powers.  It  can  exercise  authority  over  no  subjects  except 
those  which  have  been  delegated  to  it.  Congress  cannot,  by 
legislation,  enlarge  the  federal  jurisdiction,  nor  can  it  be 
enlarged  by  the  treaty-making  power. 

*  Scott  vs.  Sandford,  19  How.,  393,  449. 

tld.,p.  448.  t  10  Pet.,  662,  736. 

276 


INEQUALITY  OF  RIGHTS 

The  court,  in  the  case  of  Pollard  vs.  Hagan*  says: 

It  cannot  be  admitted  that  the  King  of  Spain  could,  by 
treaty  or  otherwise,  impart  to  the  United  States  any  of  his 
royal  prerogatives;  and  much  less  can  it  be  admitted  that 
they  have  capacity  to  receive  or  power  to  exercise  them. 
Every  nation  acquiring  territory,  by  treaty  or  otherwise, 
must  hold  it  subject  to  the  constitution  and  laws  of  its  own 
government. 

It  may  be  conceded,  for  the  sake  of  argument,  that 
Congress  may  determine  the  status  of  the  present  inhabi- 
tants of  the  ceded  islands,  but  the  Fourteenth  Amendment 
fixes  the  status  of  all  persons  born  therein  after  the  date 
of  cession.  The  court,  in  the  recent  case  of  United  States 
vs.  Wong  Kim  Ark,^  held  that  American-born  Chinamen 
of  alien  parentage  are  citizens  of  the  United  States  free 
from  the  provisions  of  the  exclusion  acts  and  treaties ;  and 
that  Congress  is  without  power  "to  restrict  the  effect  of 
birth,  declared  by  the  Constitution  to  constitute  a  sufficient 
and  complete  right  of  citizenship." 

Even  the  question  of  citizenship  does  not  determine  per- 
sonal and  property  rights  under  the  Constitution.  The 
Supreme  Court,  in  the  late  case  of  Lem  Moon  Sing  vs. 
United  States,  X  in  passing  on  the  rights  of  a  Chinese  alien 
in  the  United  States,  said: 

While  he  lawfulh^  remains  here  he  is  entitled  to  the 
benefit  of  the  guaranties  of  life,  liberty,  and  property,  se- 
cured by  the  Constitution  to  all  persons,  of  whatever  race, 
within  the  jurisdiction  of  the  United  States.  His  personal 
rights  when  he  is  in  this  country,  and  such  of  his  property 
as  is  here  during  his  absence,  are  as  fully  protected  by  the 
supreme  law  of  the  land  as  if  he  were  a  native  or  naturalized 
citizen  of  the  United  States. 

*  3  How.,  212,  225.      f  169  U.  S.,  649,  703.      J  158  U.  S.,  538,  547. 

277 


ESSAYS  AND  ADDRESSES 

This  brief  review  of  the  authorities  makes  it  clear  that 
the  Supreme  Court,  in  the  discharge  of  its  highest  func- 
tion, has  steadily  interpreted  the  Constitution  in  the  terms 
of  liberty,  giving  full  effect  to  its  purpose  to  establish 
equality  of  rights  for  all  men  in  all  places  within  the  juris- 
diction of  the  United  States. 

The  proposal,  despite  such  a  Constitution  so  achieved 
and  thus  interpreted,  to  reintroduce  into  our  system  the 
principle  of  inequality  of  rights,  the  assertion  of  a  purpose 
to  make  God's  liberty  a  matter  of  locality  instead  of  per- 
sonal right,  is  indeed  shocking.  Even  the  assumed  interests 
of  trade  cannot  impart  lasting  vitality  to  a  purpose  whose 
merits  may  not  be  discussed  in  the  presence  of  free  men. 
We  made  tremendous  sacrifices  to  destroy  the  inequality 
of  slavery,  to  make  the  ideal  of  equality  declared  by  the 
fathers  the  highest  achievement  of  constitutional  hberty. 
We  suffered  much  that  the  Union  might  cease  to  be  di- 
vided, that  all  men  within  the  jurisdiction  of  the  United 
States,  irrespective  of  race  or  color,  might  have  equal  per- 
sonal rights.  The  argument  that,  having  sinned  against 
liberty  in  our  treatment  of  the  negro,  we  may  now  betray 
liberty  in  the  person  of  the  Filipino  for  a  possible  commer- 
cial profit,  is  but  for  the  moment,  and  to  cover  an  awful 
blunder.  The  Constitution  lives  as  the  supreme  law  of  the 
land.  It  does  not  admit,  what  ex-President  Harrison  has 
justly  characterized,  "a  construction  contrary  to  liberty." 
It  can  neither  be  amended  nor  long  evaded  to  promote  in- 
equality of  rights.  Nothing  short  of  equality  of  rights  for 
all  men  as  men  in  all  places  within  the  jurisdiction  of  the 
United  States  can  be  the  purpose  of  American  law. 

278 


SHALL  THE   UNITED  STATES  HAVE  COL- 
ONIES?* 

Arbitrary  governments  may  have  territories  and  dis- 
tant possessions  because  arbitrary  governments  may  rule 
them  by  different  laws  and  different  systems.  .  .  . 
We  can  do  no  such  thing.  They  must  be  of  us,  part  of  us, 
or  else  strangers. — Daniel  Webster. 

r  jiHIS  topic  of  course  involves  the  recent  acquisition  by 
the  United  States  of  an  extraordinary  assortment  of 
distant  islands  and  alien  people.  Having  acquired  these 
islands  and  peoples  by  our  recent  wars,  we  must  determine 
upon  a  course  of  action  in  respect  to  them.  Three  courses 
are  open  to  us.  First,  we  may  let  them  go,  securing  by 
treaty  all  proper  privileges  in  return  for  some  measure  of 
protection  from  outside  aggression.  Second,  we  may  in- 
corporate them  into  our  body  politic,  holding  them  by  force 
in  subjection  without  representation.  Third,  we  may  in- 
corporate them  into  our  body  pohtic,  conceding  to  them  the 
inahenable  rights  of  freedom  with  representation. 

Those  who  would  adopt  the  first  course,  letting  the  is- 
lands go,  believe  that  their  people  are  not  fitted  to  share 
with  us  the  privileges  and  duties  of  American  citizenship; 
and  that,  whatever  others  may  do,  it  is  not  open  to  us  to 
deny  to  men  of  any  race  or  place  equahty  of  personal 
rights.  They  who  thus  believe  do  not  undervalue  trade. 
They  do  not  wish  to  restrict  American  influence.     They 

*  Address  at  the  Second  National  Social  and  Political  Conference  at 
Detroit,  Mich.,  June  29,  1901. 

279 


ESSAYS  AND  ADDRESSES 

desire  to  hold  their  country  true  to  the  course  which  has 
exalted  her  among  the  nations  and  made  her  prosperous 
beyond  compare.  They  believe  that  we  can  secure  through 
treaties,  cordially  entered  into  by  native  governments,  all 
privileges  of  trade  and  intercourse  with  their  peoples  which 
we  should  ask. 

Those  who  would  let  the  islands  go  hold  that,  if  the  na- 
tives are  incompetent  to  maintain  public  order  by  means  of 
governments  of  their  own  choice  suited  to  their  conditions, 
they  are  unfit  for  incorporation  into  our  body  politic  on 
whatever  terms.  They  who  so  hold  are  unwilling  to  pro- 
vide place  beneath  their  country's  flag  for  others  than  citi- 
zens. They  remember  the  tremendous  sacrifices  made  by 
a  passing  generation  to  efface  the  stain  of  human  slavery 
from  the  American  name.  They  would  not  reintroduce 
inequality  of  rights  into  a  nation  that  was  "  conceived  in 
liberty  and  dedicated  to  the  proposition  that  all  men  are 
created  equal."  They  would  hold  America  true  to  the 
ideals  of  liberty  and  human  rights  which  inspired  her  na- 
tional life,  which  constitute  her  real  glory,  which  form  the 
basis  of  her  most  splendid  vision. 

Those  who,  with  Benjamin  Harrison,  would  "limit  the 
use  of  the  power  of  territorial  expansion  to  regions  that 
may  safely  become  part  of  the  United  States,  and  to  peo- 
ples whose  American  citizenship  may  be  allowed,"  do  not 
question  the  power  of  the  American  people  —  whom  they 
distinguish  from  the  American  government,  their  agent — 
as  a  nation  to  do  as  respects  acquired  territory  what  other 
nations  may  do.  They  deny  that  it  is  open  to  a  people, 
organized   to   secure   and  maintain   self-government   for 

280 


UNITED    STATES    AND    COLONIES 

themselves  and  their  posterity,  to  question  or  deny  the  right 
of  another  people  to  self-government.  They  say  that  a 
people,  who  for  more  than  a  century  have  repudiated  and 
denied  the  doctrine  of  absolutism,  are  estopped  to  assume 
and  exercise  absolute  power  over  other  peoples.  They  hold 
that  a  crowd  acting  the  role  of  despot  is  even  less  open  to 
reason  than  is  the  individual  despot.  They  no  more  desire 
to  exercise  despotic  power  over  others  than  to  be  them- 
selves the  victims  of  despotism. 

The  second  course  open  to  us,  the  incorporation  of  the 
island  peoples  into  our  body  politic  to  be  held  in  subjection 
without  representation,  is  but  a  reversion  to  the  Roman 
method  of  nation-making.  It  involves  the  reintroduction 
into  our  system  of  the  doctrine  of  inequality.  It  means  the 
government  of  millions  of  men  by  force.  It  marks  a  clear 
departure  from  the  hitherto  consistent  course  in  the  pursuit 
of  which  we  have  achieved  national  greatness  and  world- 
wide influence.  Until  now  our  every  acquisition  of  terri- 
tory was  made  to  expand  the  domain  of  equal  rights,  to 
extend  the  area  of  constitutional  liberty.  Each  successive 
expansion  of  our  territory  enlarged  a  republic  of  self- 
governing  men.  The  inhabitants  of  every  such  acquisition 
became  citizens,  sharing  with  us  the  rights  of  American 
citizenship. 

This  natural  growth  of  a  self-governing  nation  has  until 
our  time  satisfied  the  aspirations  of  American  statesman- 
ship. Those,  who  from  time  to  time  exercised  the  authority 
of  the  nation,  have  been  content  to  "limit  the  use  of  the 
power  of  territorial  expansion  to  regions  that  might  safely 
become  part  of  the  United  States,  and  to  peoples  whose 

281 


ESSAYS  AND  ADDRESSES 

American  citizenship  might  be  allowed."  Without  prelim- 
inary discussion  and  by  a  course  each  step  of  which  was 
declared  not  to  involve  the  next,  we  have  been  conmiitted 
to  what  is  at  last  conceded  to  be  a  departure  from  our 
traditional  policy,  to  what  is  called  a  colonial  policy.  We 
have  by  wars  of  conquest  acquired  distant  territories  fully 
peopled  by  millions  of  men  not  qualified  for  American 
citizenship.  Our  government,  which  is  without  inherent 
powers  and  is  but  the  expression  of  the  will  of  a  self-gov- 
erning people,  has  assumed  and  to-day  exercises  despotic 
power  over  these  unhappy  peoples.  We  have  flatly  denied 
to  them  the  inalienable  "rights  of  human  nature"  for  which 
the  Revolution  was  fought.  We  have  despoiled  them  of 
native  land  and  made  them  mere  subjects  of  a  distant  re- 
public. We  have  relegated  them  to  a  status  of  slavery. 
Benjamin  Harrison,  referring  to  them  in  January  last, 
said:  "The  man  whose  protection  from  wrong  rests 
wholly  upon  the  benevolence  of  another  man  or  a  congress, 
is  a  slave  —  a  man  without  rights."  Mr.  Justice  Harlan, 
in  the  Downes  case,  says:  "The  idea  that  this  country 
may  acquire  territories  anywhere  upon  the  earth,  by  con- 
quest or  treaty,  and  hold  them  as  mere  colonies  or 
provinces,  and  the  people  inhabiting  them  to  enjoy  only 
such  rights  as  Congress  chooses  to  accord  to  them,  is  wholly 
inconsistent  with  the  spirit  and  genius  as  well  as  with 
the  words  of  the  Constitution." 

This  policy,  though  within  the  power  of  the  greatest 
of  republics,  is  suicidal.  John  Fiske,  in  discussing  its 
failure  at  Rome,  says:  "The  essential  vice  of  the  Roman 
system  was  that  it  had  been  unable  to  avoid  weakening  the 

282 


UNITED  STATES  AND  COLONIES 

spirit  of  personal  independence  and  crushing  out  local 
self-government  among  the  people  to  whom  it  had  been 
applied.  It  owed  its  wonderful  success  to  joining  liberty 
with  union,  but  as  it  went  on  it  found  itself  compelled 
gradually  to  sacrifice  liberty  to  union,  strengthening  the 
hands  of  the  central  government  and  enlarging  its  func- 
tions more  and  more,  until  by  and  by  the  political  life  of 
the  several  parts  had  so  far  died  away  that,  under  the 
pressure  of  attack  from  without,  the  union  fell  to  pieces 
and  the  whole  political  system  had  to  be  painfully  recon- 
structed." 

"The  Roman  method  of  nation  making  lacked  the 
principle  of  representation.  .  .  .  What  was  needed 
was  the  introduction  of  a  fierce  spirit  of  personal  liberty 
and  personal  self-government." 

There  is  a  third  course  open  to  us,  the  incorporation  of 
the  island  peoples  into  our  body  politic  with  the  equal 
rights  of  American  citizenship.  This  is  the  tried  American 
method  of  nation-making.  It  is  founded  on  the  great 
principle  of  representation.  Until  with  professions  of 
humanity  on  our  lips  we  entered  upon  wars  of  conquest, 
we  had  not  dreamed  that  a  self-governing  people  might 
extend  its  national  boundaries  by  other  means.  It  assumed 
that  governments  derive  their  just  powers  only  from  the 
consent  of  the  governed.  It  did  not  prevent  national  ex- 
pansion. It  limited  such  expansion  to  regions  and  peoples 
that  might  safely  be  admitted  into  a  self-governing  nation. 
The  admission  of  acquired  territories  as  States  was  only 
delayed  for  sufficient  population  to  maintain  all  the  institu- 
tions   of   constitutional    liberty.      In    the   meantime    the 

283 


ESSAYS  AND  ADDRESSES 

personal  rights  of  American  citizenship  were  protected 
by  the  Constitution  and  everywhere  respected.  In  the 
words  of  the  Supreme  Court,  in  a  case  decided  in  1895, 
even  aliens  were  ''entitled  to  the  benefit  of  the  guaranties 
of  life,  liberty,  and  property,  secured  by  the  constitution 
to  all  persons,  of  whatever  race,  within  the  jurisdiction  of 
the  United  States/'*  With  the  close  of  the  Civil  War  the 
ideal  that  rights  pertain  to  man,  not  to  race  or  place,  be- 
came the  law  of  the  land.  Thus  was  removed  the  gulf 
which  was  so  long  fixed  between  our  faith  and  our  prac- 
tice.    Thus  was  won  the  noblest  triumph  of  liberty. 

Why  is  it  proposed  to  depart  from  a  course  so  long  and 
so  successfully  pursued?  Why  reverse  the  movement  for 
an  equality  that  was  the  ideal  of  the  Declaration  and  the 
achievement  of  the  amended  Constitution  ?  Why  substitute 
inequality  for  equality?  Why  again  divide  a  Union  for 
which  such  tremendous  sacrifices  were  made  that  it  might 
cease  to  be  divided?  Why  transform  "a  republic,  founded 
on  the  Declaration  of  Independence,  guided  by  the  coun- 
sels of  Washington,  into  a  vulgar,  commonplace  empire, 
founded  upon  physical  force?" 

The  answers,  thus  far  vouchsafed  to  us,  are  such  as 
these:  "Where  the  flag  is  up,  it  must  stay  up."  "The 
Philippines  are  ours  forever."  "Into  our  reluctant  lap 
the  hand  of  destiny  dropped  the  Philippines."  "The 
Philippines,  like  Cuba  and  Porto  Rico,  were  entrusted  to 
our  hands  by  the  Providence  of  God."  By  treaty  "Spain 
cedes  to  the  United  States  the  archipelago  known  as  the 
Philippine  Islands."     We  must  "do  our  part  in  the  re- 

*Lem  Moon  Sing  vs.  United  States,  158,  U.  S.  538,  547. 

284 


UNITED  STATES  AND  COLONIES 

generation  of  the  world"  regardless  of  "outgrown"  ideals. 
"Beyond  the  Philippines  China!"  "Behold  the  exhaust- 
less  markets  they  command!"  Amiexation,  assumed  to 
have  been  necessary  or  desirable,  is  even  alleged  in  the 
prevailing  opinion  of  the  Supreme  Court  of  the  United 
States  as  sufficient  reason  for  "large  concessions"  in  the 
interpretation  of  the  Constitution  itself. 

That  the  islanders  are  not  qualified  for  American 
citizenship  is  everywhere  acknowledged.  Indeed,  their 
alleged  unfitness  for  self-government  is  the  excuse  for 
making  them  subjects  of  a  self-governing  people.  Be- 
cause "they  are  not  of  a  self-governing  race"  we  may 
incorporate  them  into  our  body  pohtic  without  representa- 
tion. In  order  to  hold  lands  and  peoples  that  are  alleged 
to  be  unfit  for  freedom,  we  have  already  created  one  of 
the  costliest  of  naval  and  military  establishments.  That 
we,  like  England,  may  have  colonies,  we  have  returned  to 
militarism  with  its  grievous  burdens  and  sordid  ideals. 
That  we  may  join  with  the  "predatory  nations"  in  the 
partition  of  the  world,  those  who  temporarily  exercise  our 
authority  are  striking  at  the  vitals  of  free  government. 

The  conceded  unfitness  of  the  islanders  for  American 
citizenship  would  seem  to  indicate  that  we  should  let  them 
go.  On  the  contrary,  it  is  made  the  conclusive  reason  for 
their  incorporation  into  our  body  politic  without  rights. 
We  made  tremendous  sacrifices  in  the  Civil  War  that  the 
Union  might  not  remain  half  slave  and  half  free.  We 
now  of  deliberate  choice,  without  any  real  necessity  or  a 
proper  motive,  sow  the  seeds  of  a  new  slavery  within  the 

republic. 

285 


ESSAYS  AND  ADDRESSES 

Those,  who  still  cherish  the  principles  of  the  Declaration 
of  Independence  and  desire  that  they  shall  continue  the 
basis  of  our  national  life,  would  let  the  sovereignty  of  the 
islands  pass  to  the  natives  who,  like  the  Cubans,  "are  of 
right  free  and  independent."  Whether  we  should  have 
acquired  Porto  Rico  and  the  Phihppines,  it  is  now  too 
late  to  discuss.  If  we  are  to  remain  a  free  people,  it  can 
never  be  too  late  to  believe  and  proclaim  that  the  United 
States  ought  not  to  acquire  or  hold  any  territory  anywhere 
that  may  not  be  governed  by  American  methods. 


286 


MISCELLANEOUS  PAPERS 


THE  CLERGYMAN  AS  A  PUBLIC  LEADER* 

rilHIS  great  institution  is  rich  in  voices  far  better  than 
mine  to  discuss  the  themes  which  mainly  engage 
your  attention  during  these  years  of  preparation.  But 
our  friend,  Dr.  Fisk,  with  a  largeness  and  freshness  of 
view  which  is  to  him  the  fountain  of  perpetual  youth, 
and  to  this  institution  the  well-spring  of  a  noble  success 
and  a  nobler  promise,  sees  that  in  our  time  the  ministry  is 
called  to  a  wider  as  well  as  higher  service  than  ever  before, 
and  that  you  need  at  least  some  glimpses  of  the  world  in 
which  and  for  which  your  work  is  to  be  done,  from  points 
of  view  other  than  that  of  your  own  profession.  He  has 
therefore  invited  me  to  give  you  one  such  glimpse  from  the 
point  of  view  of  legal  training  and  experience,  affected 
somewhat  by  an  active  interest  in  all  that  makes  for  right- 
eousness and  public  order. 

De  Tocqueville,  in  his  "Democracy  in  America,"  says: 
"The  government  of  democracy  is  favorable  to  the  politi- 
cal power  of  lawyers ;  for  when  the  wealthy,  the  noble,  and 
the  prince  are  excluded  from  the  government,  they  are 
sure  to  occupy  the  highest  stations  in  their  own  right,  as 
it  were,  since  they  are  the  only  men  of  information  and 
sagacity,  who  can  be  the  object  of  the  popular  choice. 
.  .  .  I  cannot  believe  that  a  republic  could  subsist  at 
the  present  time  if  the  influence  of  lawyers  in  public  busi- 

*  An  address  given  before  the  students  of  the  Chicago  Theological 
Seminary  in  the  Winter  of  1894-95. 

289 


ESSAYS  AND  ADDRESSES 

ness  did  not  increase  in  proportion  to  the  power  of  the 
people."  Professor  Bryce,  in  his  later  and  profounder 
study  of  the  American  Commonwealth,  says :  "  The  bar  has 
usually  been  very  powerful  in  America,  not  only  as  being 
the  only  cla^s  of  educated  men  who  are  at  once  men  of 
affairs  and  skilled  speakers,  but  also  because  there  has 
been  no  nobility  or  territorial  aristocracy  to  overshadow  it. 
Politics  have  been  largely  in  its  hands,  and  must  remain 
so  as  long  as  political  questions  continue  to  be  involved 
in  the  interpretation  of  constitutions." 

Of  the  church,  Professor  Bryce  says:  "It  is  an  as- 
semblage of  men  who  are  united  by  their  devotion  to  an 
unseen  Being,  their  memory  of  a  past  divine  life,  their 
belief  in  the  possibility  of  imitating  that  life,  so  far  as 
human  frailty  allows,  their  hopes  for  an  illimitable  future. 
Compulsion  of  every  kind  is  contrary  to  the  nature  of 
such  a  body,  which  lives  by  love  and  reverence,  not  by  law. 
It  desires  no  State  help,  feeling  that  its  strength  comes 
from  above,  and  that  its  kingdom  is  not  of  this  world." 

I  quote  these  passages  to  bring  to  your  attention  two 
great  forces  which  have  thus  far  led  in  the  development  of 
American  institutions.  Their  united  influence  has  been 
at  once  so  conservative  and  so  progressive,  that  the  Ameri- 
can people  are  to-day  recognized  as  one  of  the  most  con- 
servative and  progressive  of  peoples.  Professor  Bryce 
says  of  us:  "They  are  conservative  in  their  fundamental 
beliefs,  in  the  structure  of  their  governments,  in  their  social 
and  domestic  usages.  They  are  like  a  tree  whose  pendulous 
shoots  quiver  and  rustle  with  the  lightest  breeze,  while  its 


290 


CLERGYMAN    AS    PUBLIC    LEADER 

roots  enfold  the  rock  with  a  grasp  which  storms  cannot 
loosen." 

The  American  lawyer,  having  drunk  deep  at  the  springs 
of  modern  liberty,  has  at  once  developed  and  conserved 
our  pohtical  and  legal  institutions.  Upon  broad  and  secure 
foundations  he  has  erected  a  legal  structure  which  in  the 
main  admirably  regulates  the  relations  of  men  to  their 
governments  and  to  each  other.  To  him  is  largely  due  the 
preservation  in  our  institutions  of  the  rich  results  of  the 
struggle  of  the  ages  for  human  freedom.  The  American 
clergyman,  on  the  other  hand,  having  everywhere  assisted, 
and  in  places  led,  in  laying  the  foundations  of  free  gov- 
ernment in  America,  has  since  led  in  all  the  great  philan- 
thropic movements  that  have  placed  this  country  in  the 
lead  in  all  works  of  active  beneficence.  He  has  planted 
churches  and  schools  in  every  hamlet  and  reared  colleges 
and  universities  in  every  commonwealth.  Everj'^where 
preaching  that  the  things  which  are  eternal  are  unseen,  he 
has  made  religion  and  conscience  a  constantly  active  force 
in  America,  not  indeed  sufficient  always  and  in  all  places 
to  avert  every  moral  ill,  but  generally  inspiring  the  leaders 
of  public  action  with  a  moral  courage  to  hold  such  evils 
at  bay  until  the  people  could  be  aroused  to  their  destruc- 
tion. He  has  held  aloft  high  ideals  of  individual  life  and 
character  and  made  the  Christian  standard  the  universal 
ethical  standard  of  his  country. 

Thus  we  see  that  the  lawyer  has  led  in  the  development 
of  free  institutions  in  America,  while  the  clergyman  has 
held  aloft  the  ideals  which  have  given  free  men  that  rev- 


291 


ESSAYS  AND  ADDRESSES 

erence  and  self-control  which  alone  fit  them  to  live  under 
such  institutions.  If  such  has  been  the  influence  of  these 
leaders  thus  far  in  our  history,  to  what  further  services 
are  they  called?  It  is  true,  as  Dean  Stanley  has  said,  that 
ours  "is  a  land  that  still  breathes  the  freshness  of  its  first 
beginnings,"  and  that  our  history  is  fresh  and  definite  to 
a  degree  unknown  elsewhere;  but  it  is  also  true  that  the 
conquest  of  the  new  world  has  so  far  proceeded,  the 
furnishing  it  with  institutions  is  so  far  completed,  that  the 
period  of  organization  may  be  considered  closed.  The  time 
has,  however,  not  yet  come,  nay,  can  never  come,  when 
those  who  have  thus  far  led  can  rest  from  their  labors. 
It  is  a  narrow  view  that  regards  the  lawyer  as  merely  a 
policeman,  whose  services  are  less  necessary  as  men  ad- 
vance in  morals  and  civilization.  The  law  and  the  lawyer 
have  to  deal  with  the  complex  relations  of  men,  and  their 
importance  to  organized  society  increases  with  its  growing 
complexity.  The  policeman  may  possibly  sometime  be 
spared,  but  a  highly  organized  society  cannot  be  conceived 
without  institutions  and  laws  to  define  rights  and  prescribe 
duties.  To  conserve,  interpret,  and  enforce  these  will  re- 
main the  function  of  the  lawyer.  To  hold  aloft  Christian 
ideals  and  cause  them  more  and  more  to  prevail  and  con- 
trol in  the  affairs,  as  well  as  in  the  individual  lives  of  men, 
will  remain  the  noble  function  of  the  clergyman.  But 
this  only  states  in  the  most  general  terms  the  service  that 
society  has  the  right  to  demand  of  its  professional  leaders. 
Let  us  examine  somewhat  in  detail  the  present  oppor- 
tunities and  duties  of  the  clergyman  to  serve  the  society  in 
which  he  is  a  leader.    And  first,  permit  me  to  observe  that 

292 


CLERGYMAN  AS  PUBLIC  LEADER 

heretofore  the  clergyman  has  mainly  sought  to  seek  out 
and  save  individual  souls  as  brands  from  the  burning.  In 
our  day,  without  losing  his  deep  sense  of  the  value  of  the 
individual  life,  he  is  beginning  to  recognize  a  call  to  save 
society  itself  as  the  only  means  of  saving  all  men.  He  has 
sought  to  save  society  by  trying  to  save  its  individual  mem- 
bers. He  now  seeks  to  regenerate  society  in  order  to  save 
all  who  compose  it.  The  end  remains  the  same.  The 
means  to  that  end  are  becoming  more  scientific  and 
inclusive. 

We  have  in  purely  political  relations  held  the  ideal  of 
the  equality  of  men,  and  have  imperfectly  realized  it  in 
practice.  Of  their  real  equality  and  mutual  dependence 
we  are  only  beginning  to  dream.  We  have  talked  of  the 
brotherhood  of  men.  Of  what  it  means  in  a  thoroughly 
Christian  society  we  have  yet  but  a  faint  conception.  In- 
stead of  making  most  of  what  is  universal  in  man,  we 
have  dwelt  upon  what  is  exceptional  and  individual.  We 
have  regarded  mere  incidents  of  birth,  education,  and 
position  of  greater  importance  than  what  is  fundamental 
in  human  nature.  We  measure  men  by  what  they  have, 
where  and  ho^^'  they  live,  what  positions  they  occupy, 
rather  than  by  what  they  are.  We  recognize  as  success 
only  external  acquisitions  and  position.  We  count  our- 
selves honored  if  we  attract  the  slightest  attention  from 
the  weary  man  of  large  interests  or  high  position,  while 
we  neglect  what  might  be  the  precious  companionship  of 
the  neighbor,  who  yearning  for  sympathy  and  the  touch  of 
a  friendly  hand,  is  ready  to  give  us  for  the  taking  all  that 
is  best  in  human  friendship.    We  give  our  dinners  to  those 

293 


ESSAYS  AND  ADDRESSES 

who  are  surfeited  with  better  dinners  at  home.  We  seek 
the  society  of  those  who  do  not  need  us  and  neglect  those 
who  do.  We  sometimes  contribute  money  to  send  the 
gospel  to  those  whom  we  regard  as  unfortunate,  which  we 
hope  will  prepare  them  for  the  next  world,  possibly  even 
for  fellowship  there  with  such  privileged  beings  as  our- 
selves. We  do  not  seek  to  know  them  here,  and  shall  need 
an  introduction  if  we  shall  be  so  fortunate  as  to  meet  them 
there. 

It  is  one  of  the  most  hopeful  signs  of  our  times  that  the 
more  fortunate  are  learning  that  there  is  an  equality  in 
human  nature  itself  deeper  and  more  profoundly 
significant  that  the  political  equality  of  the  Declaration  of 
Independence.  The  institutional  church  in  certain  com- 
munities, the  Young  Men's  Christian  Association 
everywhere,  the  societies  for  citj'^  evangelization,  and  the 
economic  and  other  conferences  of  representatives  of  all 
elements  of  society  all  testify  of  a  growing  sense  of  fel- 
lowship and  mutual  dependence.  But  the  changing 
attitude  of  the  fortunate  to  those  who  are  less  so  is  just 
now  nowhere  so  well  expressed  as  by  the  social  settlement. 
As  a  point  of  contact,  a  place  where  the  reorganization  of 
society  may  begin,  it  is  already  of  great  value.  As  a  means 
of  changing  the  point  of  view  and  consequent  methods  of 
those  who  would  aid  the  less  fortunate,  and  as  an  educa- 
tional influence  as  to  the  necessity  of  social  organization 
throughout  the  entire  community,  it  promises  to  be  of  still 
greater  value.  We  may  even  anticipate  a  time  when  each 
Christian  home  will  be  a  social  settlement  to  its  immediate 
neighbors.     Isolation  and  lack  of  the  human  sympathy 

294 


CLERGYMAN  AS  PUBLIC  LEADER 

which  stimulates  and  sustains  are  by  no  means  confined  in 
our  cities  to  the  homes  of  the  poor. 

In  the  great  work  or  regenerating  society  itself,  to 
create  the  conditions  that  shall  be  most  favorable  for  the 
salvation  of  all  men,  the  Christian  minister  is  the  natural 
leader.  It  is  for  him  to  determine  how  fast  it  shall  pro- 
ceed, and  upon  his  success  rests  the  solution  of  many  of 
the  pressing  social  and  political  problems  of  our  day. 

In  his  place  of  leadership  the  clergyman  now  needs 
strongly  to  guard  himself  against  sentimentalism  and  even 
socialism  and  anarchy.  He  should  set  his  face  as  a  flint 
against  the  lawless  spirit  of  our  age.  We  hear  much  of 
late  of  "Christian  socialists"  and  their  schemes  of  social 
revolution,  but  no  two  of  them  have  yet  agreed  upon  a 
programme  for  the  reorganization  of  society.  Bishop 
Potter,  in  his  recent  notable  address,  while  asserting  the 
clergyman's  duty  to  condemn  unjust  combinations  of  em- 
ployers and  the  tyranny  of  capital,  says:  "But  it  is  a 
very  different  thing  when  the  pulpit  or  the  religious 
teacher,  passing  on  from  his  own  province  of  rebuking 
things  that  are  evil,  becomes  the  advocate  and  defender 
of  a  new  social  philosophy  which  perilously  misconceives 

the  problem  of  which  it  proposes  the  solution 

The  religion  of  Jesus  Christ  is  here  in  the  world  to  miti- 
gate the  hardships  which  arise  out  of  the  seemingly 
inexorable  operation  of  the  laws  of  nature,  whether  they 
are  laws  of  trade,  or  of  disease,  or  of  death."  Commenting 
on  this,  "The  Churchman"  says:  "The  ministers  of  religion 
are  justly  held  responsible  for  a  very  large  amount  of  the 
social  discontent  and  disorder  which  is  the  most  dangerous 

295 


ESSAYS  AND  ADDRESSES 

characteristic  of  modern  life.  .  .  .  It  is  painfully 
evident  that  ministers  of  religion,  in  pulpit  and  on  plat- 
form, have  again  and  again  proclaimed  the  barest  socialism 
and  even  anarchism.  They  have  declared  that  the  existing 
order  of  society  is  unrighteous,  tyrannical,  contrary  to  the 
law  of  God  and  the  rights  of  man.  Such  a  state  of  society 
evidently  ought  to  be  put  down;  and  such  teaching  is  the 
public  justification  of  confiscation  and  revolution." 

These  words  are  severe,  but  they  are  widely  believed  to 
be  justified  by  the  recent  teaching  of  not  a  few  pulpits  of 
more  denominations  than  one.  Of  course  it  is  not  here 
claimed  that  clergymen  are  the  only  offenders  against 
public  order.  Last  July  in  this  city  public  officials,  as 
well  as  two  leading  clergymen,  conferred,  apparently  on 
terms  of  mutual  respect,  with  men  then  actively  engaged 
in  the  act  of  violating  the  criminal  laws  both  of  the  State 
and  Nation.  These  conferences  were  held  for  the  purpose 
of  securing  the  arbitration  of  a  crime,  the  most  gigantic 
criminal  conspiracy  of  our  times.  At  least  two  governors 
of  distant  States  telegraphed  the  leading  conspirators  for 
"permission"  to  run  trains  in  their  own  territory,  and 
within  the  jurisdiction  of  their  own  laws.  Emboldened  by 
the  attention  received  from  so  many  of  the  representatives 
of  society  the  leaders  of  the  conspiracy  even  presumed  to 
open  a  public  discussion  of  its  subject-matter  with  the 
President  of  the  United  States.  He  had  the  moral  fibre 
to  hold  no  communication  with  men  while  engaged  in 
violating  the  criminal  laws  of  the  land,  except  through 
the  courts,  and  to  direct  the  military  forces  at  his  command 
to  suppress  their  treasonable  insurrection. 

296 


CLERGYMAN  AS  PUBLIC  LEADER 

The  general  economic  training  of  our  generation  has 
been  vicious  in  the  extreme.    We  have  sown  the  wind  and 
are  now  reaping  the  whirlwind.     For  a  generation  our 
people  have  been  taught  that  it  is  the  province  of  govern- 
ment to  provide  work  for  all  those  who  labor  with  their 
hands,  for  such  hours  as  they  choose,  at  such  wages  as 
they  want.     Many  now  act  upon  the  theory  that  it  is  the 
duty  of  the  government  to  support  the  people,  and  not  the 
duty  of  the  people  to  support  the  government.    By  special 
legislation  we  have  made  many  employers  of  labor  enor- 
mously rich,  assuming  that  they  will  out  of  the  goodness 
of  their  hearts  divide  with  their  employees.     A  paternal 
government  has  created  a  privileged  class  through  whose 
benevolence     to     confer     largesses     upon     the     people. 
Laboring  men  have  especially  been  taught  to  look  upon 
corporations  as  possessed  of  bottomless  treasuries  from 
which  to  pay  high  and  continuous  wages  without  reference 
to  income  or  the  condition  of  business.     The  doctrine  is 
widely  held  that  men  who  have  been  paid  in  full  the  wages 
agreed  upon  for  services  rendered  have  also  an  indefinite 
vested  interest  in  the  business  and  property  of  their  em- 
ployers, which  can  at  any  time  be  easily  determined  and 
enforced  by  the  panacea  of  arbitration.     In  connection 
with  the  late  strike  it  has  been  widely  insisted  that  a  cor- 
poration already  running  at  a  loss  is  under  some  obligation 
determinable  and  enforceable  by  arbitration  to  raise  wages 
and  continue  business  in  times  of  great  depression  merely 
because  it  has  made  money  in  the  past  and  is  yet  able  to 
conduct  a  distinct  part  of  its  business  at  a  profit.    Special 
favorites  of  the  laws,  constituting  a  dangerous  privileged 

297 


ESSAYS  AND  ADDRESSES 

class,  use  funds  placed  in  their  hands  by  a  paternal  gov- 
ernment to  pay  paternal  and  benevolent  wages,  to  purchase 
elections  and  debauch  legislation  and  administration. 
Trade  unions,  often  encouraged  by  public  sentiment,  claim 
the  right  to  say  who  shall  work,  upon  what  conditions, 
and  at  what  wages.  When  necessary  to  enforce  their  de- 
mands they  claim  the  right  to  destroy  life  and  property 
with  impunity.  They  have  pressed  their  wages  so  high  in 
industrial  centers  as  to  invite  disastrous  competition  by 
workers  from  smaller  places.  They  have  imposed  such 
intolerable  conditions  upon  many  employers  that  capital 
is  more  and  more  seeking  investment  in  channels  employ- 
ing the  least  possible  labor.  Paternalism  in  government 
has  led  organized  labor  to  create  an  arbitrary  power  within 
the  State,  far  more  absolute  in  its  control  of  vast  numbers 
than  the  law  of  the  land  itself.  It  largely  ignores  all  duly 
constituted  authority  and  resents  the  interference  of  the 
courts  as  tyranny. 

These  conditions  are  not  due  to  our  system  of  govern- 
ment, but  to  vicious  teaching  and  false  leadership.  The 
crying  need  of  our  day  is  for  public  leaders  who  believe 
and  boldly  teach  that  two  wrongs  do  not  make  a  right,  that 
a  free  country  has  no  place  for  privileged  classes,  whether 
created  by  legislation  or  trades-unionism,  and  that  life 
and  opportunity  and  property  must  be  preserved  inviolate 
against  all  comers. 

There  are  laws  affecting  the  relations  of  men  in  society 
and  the  production  and  distribution  of  the  necessaries 
of  life,  which  are  as  natural  and  inexorable  as  the  law  of 
gravitation  itself.     Providence,  having  established  these 

298 


CLERGYMAN  AS  PUBLIC  LEADER 

laws,  does  not  relieve  from  the  penalties  provided  for  their 
violation.  Yet  a  mushy  and  thoughtless  sentimentalism 
of  our  time  seeks  to  improve  upon  Providence.  We  regard 
what  a  man  wants,  rather  than  what  he  earns,  as  the  meas- 
ure of  his  deserts.  He  may  receive  from  three  to  five  dol- 
lars per  day  for  labor  requiring  only  slight  skill,  but  if 
he  complains  that  he  is  the  slave  of  capital  because  his 
hours  are  longer  than  he  likes,  or  his  employer  declines  to 
5ield  to  every  outrageous  demand  of  his  union,  we  at  once 
extend  our  sympathy  and  assume  that  a  great  question 
between  capital  and  labor  is  raised.  There  are  open  ques- 
tions between  labor  and  capital  which  demand  settlement, 
but  these  questions  cover  a  smaller  field  than  is  generally 
assumed.  The  relation  is  a  necessary  one,  and  is  already 
in  most  respects  regulated  by  positive  laws  which  are  at 
once  in  accord  with  the  fundamental  conditions  of  free 
government  and  the  principles  of  justice.  No  man  is  a 
slave  merely  because  he  works  for  another.  In  a  highly 
organized  society  like  ours,  we  all  in  some  form  work  for 
others  under  the  obhgations  of  free  contract.  Our  wages, 
fees  or  profits  depend  upon  meeting  these  obligations. 

Further,  the  assumption  that  labor  is  the  only  factor  in 
production  and  that  the  laborer  is  wronged  by  his  failure 
to  secure  the  whole  product,  is  the  basis  of  much  vicious 
teaching.  Mr.  Mallock,  in  his  recent  work,  "Labor  and  the 
Popular  Welfare,"  discards  the  word  "capital"  as  mis- 
leading and  substitutes  the  term  "ability"  therefor.  He 
makes  all  production  the  result  of  "  human  exertion  "  and 
divides  this  into  "labor"  and  "ability."  Labor  is  manual 
labor,  and  all  other  exertion  is  ability.    Labor  is  a  kind  of 

299 


ESSAYS  AND  ADDRESSES 

exertion  which  begins  and  ends  with  each  separate  task 
upon  which  it  is  employed,  while  ability  is  a  kind  of  ex- 
ertion which  is  capable  of  affecting  simultaneously  the 
labor  of  an  indefinite  number  of  individuals.  He  illus- 
trates his  meaning  by  the  failure  of  Watt  to  train  up  indi- 
vidual workmen  able  to  make  cylinders  true  enough  to 
keep  the  pistons  steam-tight.  "^Henry  Maudslay,  by  in- 
troducing the  slide  rest,  did  at  a  single  stroke  for  all 
the  mechanics  in  the  country  what  Watt,  after  years  of 
effort,  was  unable  to  do  for  any  of  them.  The  power  of 
one  man  thus  descended  upon  a  thousand  workshops,  and 
sat  upon  each  of  the  laborers  like  the  fire  of  an  industrial 
Pentecost."  Ability  includes  the  inventor  and  the  man  who 
applies  the  invention  to  practical  use.  It  is  the  man  who 
knows  how  to  produce,  what  to  produce  and  where  to  find 
a  market.  It  is  this  rare  power  of  calculation,  called  by 
Mr.  Mallock  ability^  which  within  this  century  has  in- 
creased the  annual  production  of  the  population  of  Eng- 
land from  $70  to  $175  per  capita^  although  the  population 
has  increased  from  ten  to  thirty-five  millions  since  the  be- 
ginning of  the  century.  This  enormous  increase  in  popu- 
lation and  income  has  involved  an  incalculable  amount  of 
inventing,  organizing,  administering,  head-work,  leader- 
ship. No  socialistic  scheme  sufficiently  takes  into  account 
this  vital  factor,  or  offers  it  any  sufficient  inducement. 
Only  fame  and  fortune  have  proven  sufficient  to  lead  men 
to  make  the  extraordinary  exertions  necessary  to  such 
achievements.  The  growth  of  the  present  social  organiza- 
tion has  been  marked  by  the  great  achievements  of  the 
race.    We  do  not  need  a  reorganization  of  society.     We 

300 


CLERGYMAN  AS  PUBLIC  LEADER 

do  need  the  removal  of  all  abuses  which  make  men  of 
power  special  favorites  of  the  laws,  and  place  unjust 
and  unnecessary  burdens  upon  the  humbler  members  of 
society.  We  cannot  create  conditions  under  which  all  men 
shall  be  equal  in  achievement,  but  we  may  create  conditions 
under  which  they  shall  be  equal  in  opportunity. 

The  clergyman  may  very  properly  deal  with  the  great 
questions  of  human  society;  but  he  should  realize  that  its 
present  organization  is  based  on  institutions  and  laws  that 
are  an  evolution  of  all  time,  and  that  he  who  seeks  to  im- 
prove the  relations  of  men  in  society  must  understand  and 
act  with  respect  to  existing  conditions.  Many  would-be  re- 
formers sally  forth  to  adjust  the  relations  of  capital  and 
labor,  to  destroy  intemperance  and  crime,  and  even  to  re- 
organize society  itself,  in  blissful  ignorance  of  existing 
institutions,  and  all  unconscious  that  human  society  is  a 
growth  and  not  a  manufacture.  We  respect  them  much 
as  we  respect  Don  Quixote,  for  their  innocence  and  seri- 
ousness of  purpose.  Their  ideas  of  government  and  law 
are  about  as  definite  and  practical  as  those  taught  to  San- 
cho  Panza  to  prepare  him  for  the  government  of  his  island. 

No  one  for  a  moment  claims  that  the  present  organiza- 
tion of  society  is  perfect,  or  even  free  from  defects  which 
cry  out  for  speedy  remedy.  But  this  organization  is  the 
product  of  a  long  and  wide  evolution.  It  embodies  the 
human  experience  of  the  ages.  It  so  distributes  the  pro- 
ducts of  industry  that  all  share  in  them,  if  not  always 
equitably.  It  provides  conditions  under  which  men  may 
be  reasonably  free,  and  it  promotes  independent  conduct 
and  character.    I  claim  that  many  of  the  natural  leaders  of 

301 


ESSAYS  AND  ADDRESSES 

society,  in  the  pulpit  and  elsewhere,  would  be  far  better 
fitted  to  remedy  existing  defects  if  they  knew  more  of  the 
institutions  and  laws  which  they  seek  to  reform. 

I  especially  recommend  to  students  such  books  as  Von 
Hoist's  "Constitutional  History  of  the  United  States," 
Cooley's  "Constitutional  Limitations,"  Bryce's  "American 
Commonwealth"  and  Mallock's  "Labor  and  the  Popular 
Welfare,"  and  such  articles  as  Cooley's  discussion  of  the 
recent  railway  strike  in  the  September  "Forum."  We  all 
read  too  much  periodical  literature  and  too  few  great 
books.  The  newspaper  and  the  monthly  magazine,  if  too 
much  relied  upon,  destroy  the  sense  of  proportion  and  the 
true  perspective.  The  discontent  of  our  times  is  great,  but 
in  a  larger  view  it  is  not  nearly  so  great  as  the  content  of 
the  vast  multitudes  of  plain  people  who  are  represented 
neither  by  the  flippant  newspapers  of  the  day,  nor  by  the 
noisy  labor  agitators  of  the  larger  cities.  The  trained 
lawyer  who  has  traced  the  growth  of  institutions  and  knows 
the  real  forces  of  organized  society  turns  from  these  noisy 
voices  and  says  with  Longfellow  in  the  presence  of  the 
abiding  work  of  Dante: 

The  tumult  of  the  time  disconsolate 
To  inarticulate  murmurs  dies  away. 
While  the  eternal  ages  watch  and  wait." 

Yea,  the  eternal  ages  watch  over  what  man,  under 
Providence,  has  already  achieved,  and  but  little  disturbed 
by  "the  tumult  of  the  time  disconsolate,"  wait  the  fulfil- 
ment of  a  larger  promise. 

The  minister  as  a  public  leader  should  be  loyal  to  great 
causes  rather  than  to  a  political  party.    It  is  the  nature  of 

302 


CLERGYMAN    AS    PUBLIC    LEADER 

partisanship  to  regard  party  as  an  end,  and  to  make  any 
sacrifice  of  moral  principle  to  maintain  its  ascendancy. 
The  partisan  profoundly  distrusts  the  motives  or  capacity 
of  those  who  do  not  think  and  act  with  him.  He  has  really 
little  faith  in  free  institutions,  because  he  believes  that 
good  government  depends  upon  the  continued  supremacy 
of  a  single  party  which  contains  perhaps  less  than  half  of 
the  people.  No  measure  of  reform  that  his  party  does  not 
champion  can  have  his  support,  for  even  its  temporary 
defeat  cannot  be  risked  to  wander  after  what  seem  to  him 
strange  gods.  He  may  not  altogether  like  the  leadership 
of  his  party,  the  desperate  and  even  criminal  means  by 
which  its  victories  are  won ;  he  may  be  even  half  conscious 
that  it  no  longer  stands  for  the  purposes  for  which  it  was 
organized,  but  as  it  continues  to  fly  the  old  banner  and 
make  constant  references  to  the  old  leaders,  it  commands 
his  unwavering  support.  This  is  not  the  attitude  for  a 
trained  man  to  occupj^  in  relation  to  public  affairs.  He 
should  have  such  knowledge  and  experience  of  the  Ameri- 
can people  as  will  enable  him  to  act  upon  the  fundamental 
truth  that  his  country  and  its  institutions  are  safe  in  the 
hands  of  any  majority  of  its  citizens  of  whatever  party 
name.  This  is  the  fundamental  condition  of  republican 
institutions.  Without  it  there  can  be  no  success  that  is  not 
merely  temporary.  Without  faith  in  it,  no  citizen  can  have 
his  proper  influence  in  public  matters.  With  such  faith, 
parties  are  to  him  but  means  to  accomplish  this  or  that 
result,  and  principle  is  the  motive  to  political  action. 

The  minister  then  of  all  men  should  not  be  a  partisan. 
His  political  action  should  have  certain  ends  in  view,  and 

303 


ESSAYS  AND  ADDRESSES 

his  political  influence  should  tend  to  promote  those  ends 
rather  than  mere  party  success.  The  man  who  advocates 
a  cause  in  which  he  profoundly  believes  commands  the 
respect  of  even  those  who  do  not  value  his  cause,  or  think 
him  mistaken  in  the  means  which  he  has  chosen  to  promote 
it.  The  minister  who  cares  more  for  temperance  than  for 
party  will  cheerfully  cooperate  with  any  man  or  party  that 
is  at  the  time  doing  something  to  promote  temperance  re- 
form. If  he  believes  that  the  present  use  of  the  civil  service 
by  both  parties  as  personal  and  party  plunder  does  not  dif- 
fer in  principle  from  looting  the  treasury,  that  it  makes 
of  many  of  our  party  contests  mere  scrambles  for  office 
instead  of  conflicts  of  principles,  he  will  earnestly  advo- 
cate civil  service  reform,  criticising  all  offenders,  and  hail 
with  joy  every  step  towards  reform  by  whatever  party 
taken.  It  is  onty  the  partisan  who  values  no  step  in  ad- 
vance unless  taken  by  his  own  party,  and  who  constantly 
offends  the  intelligence  of  others  by  claiming  that  his  party 
contains  all  the  loyalty,  intelligence,  and  virtue  of  the 
country. 

The  attitude  of  the  minister  toward  pohtical  parties 
should,  therefore,  be  independent.  His  relation  to  the  great 
public  questions  which  one  by  one  come  up  for  political 
action  need  not  be  neutral,  if  his  interest  is  plainly  for  the 
cause  rather  than  for  the  party  that  for  the  moment  is  its 
champion.  Henry  Ward  Beecher's  splendid  services  in 
the  cause  of  human  liberty  did  not  diminish  his  influence 
as  a  Christian  minister,  while  they  powerfully  contributed 
to  the  welfare  of  his  country.  When  we  think  of  his  rela- 
tion to  public  affairs  we  think  of  the  great  causes  which 

304 


CLERGYMAN    AS    PUBLIC    LEADER 

his  powerful  support  promoted,  rather  than  of  the  parties 
with  which  he  from  time  to  time  acted.  Contrast  his  atti- 
tude toward  parties  and  his  pohtical  influence  with  that  of 
the  great  Brooklyn  preacher,  who  in  a  recent  national  cam- 
paign, finding  himself  out  of  harmony  with  the  leadership 
of  his  party  and  the  attitude  of  that  party  to  the  questions 
of  the  time,  at  first,  in  his  own  phrase,  "took  to  the  woods," 
and  then  returned  to  his  party  support  because  of  old  as- 
sociations and  because  it  seemed  to  him  to  contain  in  its 
rank  and  file  more  good  people  than  the  opposition.  A 
political  party  is  not  a  social  organization.  Its  leaders, 
their  characters  and  aims  at  any  given  time,  are  more  im- 
portant than  the  character  of  its  membership.  If  on  the 
issue  of  the  hour  a  party  is  on  the  right  side,  one  may  act 
with  it  without  thereby  indicating  approval  of  the  character 
of  all  its  members,  or  even  of  all  of  its  past  history.  The 
great  mass  of  the  voters  in  all  parties  are  at  heart  good 
citizens.  If  it  were  not  so,  free  government  would  still 
remain  but  a  dream.  No  political  party  has  ever  continu- 
ously based  its  action  on  a  political  creed  of  such  import- 
ance as  to  command  the  steady  support  of  thoughtful  and 
independent  men.  One  cannot  safely  join  a  party  as  he 
does  the  church,  for  life.  Controlling  issues  in  public 
affairs  usually  come  up  for  settlement  one  at  a  time.  One 
party  is  on  the  right  side  of  one  question;  another  party 
has  the  better  side  of  the  next  issue  that  commands  public 
attention.  The  independent  man,  who  cares  more  for 
causes  than  for  parties,  with  faith  in  the  good  intentions  of 
all  parties,  uses  one  party  to  accomplish  one  end  and  some 
other  party  to  accomplish  another.     If  there  were  not 

305 


ESSAYS  AND  ADDRESSES 

many  men  who  acted  on  this  fundamental  condition  of  free 
institutions  their  days  would  soon  be  numbered.  This  at- 
titude should  characterize  all  thoughtful  men,  and  espe- 
cially the  Christian  ministry,  a  body  of  men  whose  culture 
is  probably  higher  than  that  of  any  other  equal  body  in 
America  to-day. 

Thoughtful  laymen  have  some  reason  to  feel  that  the 
political  action  of  many  Christian  ministers  is  too  much 
characterized  by  sentiment  or  indifference.  This  complaint 
should  perhaps  extend  to  many  other  active  Christian  men, 
who  are  doing  more  to  cure  than  to  prevent  moral  disease. 
In  these  days  when  a  gospel  of  mercy  and  love,  of  forgive- 
ness and  probation,  is  so  much  preached,  while  obedience 
and  punishment  have  come  to  be  regarded  as  harsh  and 
cruel,  it  may  be  we  should  expect  only  tolerant  judgments 
and  prompt  forgiveness  of  political  and  social  offenders. 
There  are  yet  some  old-fashioned  moralists,  however,  who 
were  shocked  when  a  late  president  pro  tern,  of  the  United 
States  Senate  sneered  at  what  he  termed  Sunday  School 
politics  and  announced  that  the  Decalogue  has  no  applica- 
tion to  politics.  There  are  still  those  who  do  not  regard 
the  application  of  moral  principles  to  political  life  and 
methods  as  an  "iridescent  dream."  There  are  yet  some 
who  believe  that  a  man  who  has  once  betrayed  a  public 
trust  should  never  have  the  opportunity  to  betray  another. 
Without  charging  that  Christian  ministers  intend  to 
ignore  political  offences  against  good  morals,  it  may  be 
asserted  that  their  influence  in  public  affairs  in  this  vital 
matter  would  be  far  greater,  if  they  showed  less  indiffer- 
ence to  moral  offences  in  political  methods  and  among 

306 


CLERGYMAN    AS    PUBLIC    LEADER 

party  leaders,  or  a  less  forgiving  spirit  toward  those  who 
have  betrayed  public  trusts.  If  political  leaders  had  a 
proper  fear  of  the  influence  of  the  moral  leaders  of  society, 
it  may  well  be  doubted  whether  a  proven  embezzler  of  pub- 
lic funds  would  have  recently  been  chairman  of  the  national 
committee  of  a  great  party,  or  whether  the  other  great 
party  would  have  kept  at  the  head  of  its  national  committee 
a  few  years  earlier  a  man  who  was  known  to  have  been  a 
briber  of  voters.  If  Christian  ministers  all  over  the  land 
had  been  quick  to  call  things  by  their  right  names,  it  may 
also  be  doubted  whether  our  national  elections  would  have 
ever  become  a  more  or  less  open  contest  in  close  States  be- 
tween the  managers  of  the  two  great  parties  to  see  which 
can  buy  the  larger  number  of  corrupt  votes.  And  if  those 
M  ho  occupy  public  places  could  not  count  upon  the  indif- 
ference of  the  moral  forces  of  society,  it  is  also  doubtful 
whether  at  the  close  of  a  recent  national  contest  a  Presby- 
terian elder  would  have  appointed  a  Sunday  school  super- 
intendent to  a  cabinet  office  for  no  known  reason  except 
that  he  had  raised  in  the  closing  hours  of  the  struggle  a 
vast  campaign  fund  for  the  purchase  of  votes.  All  these 
things  should  be  condemned  by  Christian  ministers,  not  to 
injure  a  party — if  done  when  called  for  probably  both  par- 
ties will  be  about  equally  affected, — but  because  they  are 
wrong,  highly  dangerous  to  the  country,  and  of  immense 
weight  in  lowering  the  moral  standards  to  which  all  con- 
duct, public  and  private,  conforms.  It  is  not  here  claimed 
that  ministers  show  greater  indifference  than  others  to  these 
conditions,  but  as  leaders  of  moral  thought  they  should 
take  the  lead  in  condemning  immoral  methods  in  public 

307 


ESSAYS  AND  ADDRESSES 

places,  and  in  demanding  that  the  same  standards  shall 
apply  in  their  conduct  that  upright  men  apply  in  their 
personal  and  business  relations. 

It  is  highly  important  that  all  public  leaders  should 
have  accurate  knowledge  of  our  complicated  system  of  gov- 
ernment, so  that  when  evils  exist  the  right  remedies  may 
be  sought.  The  last  few  years  have  witnessed  many  ap- 
peals by  most  excellent  men  to  the  national  government 
to  remedy  evils  wholly  within  the  jurisdiction  of  the 
States.  The  effect  is  to  introduce  issues  into  national  poli- 
tics which  have  no  place  there,  to  the  exclusion  of  other 
questions  that  should  be  brought  forward.  It  has  also 
caused  an  immense  loss  of  power  which  should  have  been 
brought  to  bear  on  the  people  and  the  local  governments 
where  abuses  have  existed.  The  same  may  be  said  of  the 
conduct  of  municipal  matters.  We  are  only  just  begin- 
ning to  reahze  in  America  that  a  municipality  is  merely 
a  business  corporation,  and  that  it  is  as  absurd  to  talk  of 
the  city  of  Chicago  having  gone  Democratic  or  Repubhcan 
as  it  would  be  to  speak  of  the  annual  meeting  of  the  stock- 
holders of  the  Pennsylvania  Railroad  Company  having 
been  carried  by  the  Republicans  or  the  Democrats.  It  is 
the  duty  of  all  good  citizens,  and  especially  of  those  who 
lead  public  thought,  to  do  all  that  is  possible  to  divorce 
municipal  from  national  politics.  The  complete  reform 
of  the  civil  service  is  in  this  reform,  as  in  many  others,  a 
preliminary  and  necessary  step. 

Finally,  the  Christian  ministry  should  be  thoroughly 
familiar  with  political  movements  and  exert  an  active,  even 
if  quiet,  influence  in  favor  of  political  causes.    All  minis- 

308 


CLERGYMAN    AS    PUBLIC    LEADER 

ters  are  not  called  upon  to  do  what  Dr.  Parkhurst  has  so 
nobly  done.  Indifferent  to  the  great  causes  which  politics 
affect,  no  live  minister  can  ever  be.  Any  poHtical  activity 
may  bring  him  in  contact  with  much  that  is  unpleasant, 
and  the  unreasonable  demands  of  his  parishioners  may 
give  him  annoyance,  but  these  things  should  be  regarded 
by  him  as  part  of  the  cost  of  personal  liberty.  Henry 
Ward  Beecher,  in  speaking  on  this  subject,  refers  to  the 
withdrawal  of  those  of  superior  endowments  from  political 
duties  as  distributive  treason,  and  adds:  "When  this 
long  procession  of  selfish  men  —  the  rich  man,  in  his 
self-indulgence ;  the  artist,  in  his  daintiness ;  the  scholar,  in 
his  literature;  the  fashionable  and  the  indolent,  in  their 
glittering  selfishness — are  seen  moving  away  from  politics, 
it  will  only  need  a  robed  and  recreant  clergyman  at  their 
head  to  form  a  band  of  infamy,  trampling  under  foot  the 
very  life  of  their  country." 

It  is  neither  the  noisy  demagogue,  nor  the  excited 
editor,  but  the  American  scholar  who  leads  our  civilization 
onward.  The  elections  may  go  against  him  to-day,  but 
he  will  declare  the  policy  of  his  country  to-morrow.  Stand- 
ing in  the  midst  of  our  busy  and  material  life,  the  type  of 
manhood  that  American  democracy  submits  to  the  world 
as  its  justification,  he  vindicates  the  vital  truth  that  the 
things  which  are  unseen  are  eternal. 

Such  should  be  every  minister  of  religion  among  us  — 
calm,  patient,  confident,  heroic,  an  example  to  all  men  of 
duty  fearlessly  performed,  a  leader  whose  influence  stead- 
ily makes  for  public  order  and  national  righteousness. 


309 


TIMOTHY  SMITH,  PIONEER* 

A  CERTAIN  hill  town  situated  near  Litchfield,  Con- 
necticut, was  at  the  close  of  the  Revolutionary  War 
typical  of  many  New  England  communities  of  that  day. 
But  sparsely  settled,  the  place  retained  much  of  its  prime- 
val beauty.  The  native  forest  of  beech,  chestnut,  elm,  oak, 
and  maple,  only  here  and  there  encroached  upon  by  the 
clearings  of  the  settlers,  was  still  the  charm  of  its  land- 
scapes. The  Congregational  meeting-house,  a  store,  a 
blacksmith  shop,  a  tavern,  and  a  few  unpretentious  dwell- 
ings formed  the  village  that  was  the  centre  of  the  com- 
munity life.  The  meeting-house  was  the  real  seat  of  local 
authority  as  well  as  the  means  of  grace  to  a  devout  people. 
Next  in  importance  as  a  unifying  agency  was  the  tavern. 
No  lodge  or  union  had  yet  arisen  to  question  the  good 
cheer  which  was  there  dispensed.  The  town  was  yet  all 
but  independent  of  the  outside  world. 

Timothy  Smith  was  born  into  this  primitive  community 
on  September  5,  1782.  He  was  the  second  of  twelve 
children,  Martin,  Timothy,  Irene,  Sarah,  Daniel,  Elijah, 
Elisha,  Abraham,  Hannah,  Russell,  Moses,  and  Aaron. 
The  twelfth  child  was  named  for  his  father,  upon  a  well- 
founded  impression  that  the  homestead  of  but  seventy 
acres  was  sufficiently  encumbered,  and  to  perpetuate  the 
name  of  the  father,  who  was  a  soldier  in  the  Revolutionary 

*  Read  before  the  Chicago  Literary  Club,  January  23,  1899.  Tim- 
othy Smith  was  the  grandfather  of  Edwin  Burritt  Smith. 

310 


TIMOTHY    SMITH,    PIONEER 

War.  The  ancestry  of  the  family,  about  which  its  mem- 
bers concerned  themselves  little,  their  love  for  what  was 
old  being  sufficiently  satisfied  by  familiarity  with  the  times 
of  the  Prophets,  dated  back  to  the  earliest  settlement  of 
New  England.  Timothy  was  of  the  fifth  generation  of  his 
mother's  family  in  Connecticut.  The  ancestors  of  his 
mother,  Lucretia  Hall,  were  among  the  founders  of  Mid- 
dletown.  Almost  every  family  of  the  town,  as  of  Con- 
necticut itself,  was  of  equally  pure  New  England  blood; 
for  after  the  great  Puritan  exodus  to  America  between 
1620  and  1640,  due  to  the  aspirations  of  James  and  Charles 
for  absolute  power,  there  was  but  little  immigration.  This 
gave  time  for  that  slow  but  most  valuable  political  train- 
ing which  has  given  character  and  persistence  to  the  Puri- 
tan influence  in  America. 

It  is  hard  at  this  distance  of  time  to  realize  the  condi- 
tions of  Timothy  Smith's  early  years.  Jabez  Holbrook, 
the  town  minister,  still  spoke  the  voice  of  God  to  his 
little  wilderness  theocracy.  Holbrook  was  at  once  the 
vicegerent  of  Heaven,  the  apostle  of  public  order,  and 
the  representative  of  culture  to  his  isolated  flock.  He 
was  an  iron  man  of  an  iron  age.  In  the  midst  of  rude 
social  conditions  he  administered  such  consolations  as 
pertained  to  the  strictly  orthodox  theology  of  his  day. 
Under  his  sway  Church  and  State  were  firmly  united. 
The  town  meeting  was  the  means  by  which  the  Congrega- 
tional order  exercised  temporal  authority  and  regulated 
the  affairs  of  the  meeting-house. 

It  was  in  the  early  years  of  the  reign  of  Jabez  Hol- 
brook, some  forty  years  earlier,  that  the  town  meeting 

311 


ESSAYS  AND  ADDRESSES 

voted  that  "Josiah  Morris  should  look  after  ye  boys,  on 
the  Sabbath  day,  to  keep  them  from  playing;  and  for 
encouragement  the  town  shall  allow  him  ten  shillings; 
further  he  is  to  give  an  account  of  ye  young  men  that  are 
disorderly."  Another  year  Jeremiah  Wittlesay  was 
"chosen  to  take  the  oversight  of  ye  youth  that  sit  below; 
and  Moses  Butler  to  have  oversight  of  ye  youth  that  sit 
in  the  gallery ;  these  persons  to  have  such  care  and  oversight 
for  one  year  or  more,  to  endeavor  the  keeping  of  ye  youth 
in  good  order;  and  that  they  take  especial  care  that  ye 
said  youth  sanctify  the  Sabbath  day  to  keep  it  holy,  and 
that  they  make  no  disturbance  in  the  time  of  ye  public 
worship."  This  vote  imposed  no  small  task  as  "ye  public 
worship"  occupied  much  of  the  day.  At  about  the  same 
time  it  was  solemnly  voted,  in  respect  to  certain  local  nota- 
bles, "that  Hezekiah  Pratt  shall  sett  in  ye  fore  seat  in  ye 
meeting-house,  and  that  Capt.  Hall,  Senr.,  shall  sett  in 
the  Deacons'  seat,  and  Capt.  Hall,  Junr.,  to  sett  in  ye  first 
pue,  and  Capt.  Doolittle  to  sett  in  ye  second  pue."  Thus 
was  provision  made  for  the  weighty  affairs  of  a  united 
Church  and  State. 

The  stern  preaching  of  the  minister,  the  real  if  formal 
piety  of  the  elders,  and  the  official  means  employed  to  cause 
the  young  to  "sanctifie"  the  Sabbath,  though  effective, 
failed  to  lead  all  the  boys  of  the  town  into  paths  of  recti- 
tude. Indeed,  a  funeral  sermon  of  the  time  by  Jabez  Hol- 
brook  discloses  a  terrible  example  of  depravity  and  rapid 
progress  in  sin.  Here  is  his  unflinching  portrayal:  "Un- 
tutored and  unrestrained  by  parental  government  Peter 
Stevens  grew  up  at  random.     In  the  morning  of  life,  no 

312 


TIMOTHY    SMITH,   PIONEER 

morality  was  inculcated  in  him,  and  no  sense  of  religion, 
either  by  precept  or  example.  On  the  contrary,  he  was 
from  early  years  unprincipled,  profane,  and  impious.  Be- 
fore he  was  nine  years  old  he  was  expert  in  cursing  and 
swearing  and  an  adept  in  mischief.  At  eleven  years  he 
began  to  pilfer.  At  thirteen  he  stole  money.  At  fifteen 
he  entertained  thoughts  of  murder,  and  rapidly  waxed 
harder  and  bolder  in  wickedness.  At  nineteen  he  actually 
murdered  a  family  in  cold  blood." 

Over  against  this  we  may  place  one  of  the  minister's 
epitaphs,  which  with  like  fidelity  portrays  a  character: 

In  memory  of  Samuel  Hall,  Esq.,  a  gentleman  of 
public  education  and  distinguished  abilities,  who  long 
served  his  generation  as  a  physician  and  minister  of  justice 
to  great  acceptance,  and  in  his  life  and  death  was  an  ex- 
ample of  sobriety  and  virtue,  and  evidenced  the  influences 
and  consolations  of  Religion;  lived  much  esteemed  and 
died  universally  lamented,  ye  6th  day  of  April,  A.  D. 
1781. 

The  great,  the  good,  the  wise,  the  just, 
Must  all  in  time  be  turned  to  dust ; 
Then  learn  to  quit  terrestrial  ties, 
That  you  may  soar  above  the  skies. 
And  then  enjoy  the  blissful  favor 
Of  Jesus  Christ,  our  Lord  and  Saviour. 

The  Smith  family  so  increased  in  numbers  that  Tim- 
othy when  eight  years  of  age  was  "put  out  to  be  raised" 
to  a  childless  couple  living  on  a  farm  some  miles  away. 
This  early  removal  from  home  was  to  be  permanent.  The 
undertaking  of  David  and  Mary  Tucker  to  "raise"  the 
boy  was  strictly  carried  out.  The  Tuckers  were  devout, 
well-meaning  people.    They  wanted  a  boy  to  "do  chores" 

313 


ESSAYS  AND  ADDRESSES 

and  in  time  make  a  full  hand  on  the  farm.  It  was  not 
their  idea  to  minister  unto  the  boy.  They  would  be  minis- 
tered unto  by  him.  The  loneliness,  the  harsh  discipline, 
and  the  hard  work  made  the  boy  long  to  return  to  his 
father's  house.  For  a  while  he  often  sobbed  himself  to 
sleep  under  the  rafters  of  the  log  house  that  for  thirteen 
years  was  to  be  his  home.  The  Tuckers  were  not  unkind ; 
they  deemed  it  best  for  the  boy  to  be  strict  with  him.  Then, 
too,  in  their  practical  view,  it  was  good  both  for  him  and 
them  that  he  early  learn  the  value  of  hard  and  well-nigh 
constant  work  for  its  own  sake.  Indeed,  then  as  now, 
work  was  a  virtue  of  special  value  on  a  farm. 

Timothy  was  sent  to  school  a  few  weeks  in  each  j'^ear 
until  he  was  twelve  years  old,  and  thus  learned  to  read 
and  write  and  to  "cipher"  a  little.  What  was  to  be  of 
greater  value  to  him,  while  a  boy  he  learned  to  drive  oxen 
and  care  for  stock,  to  chop  and  clear,  to  sow  and  reap, 
to  make  sleds  and  ox  j^okes,  to  split  rails  and  build 
fences, — in  a  word,  to  be  a  pioneer  farmer  qualified  to 
share  the  rough  work  of  his  generation.  Being  a  boy  under 
such  conditions  was  a  task  that  was  neither  light  nor  agree- 
able. On  one  occasion  when  sent  in  the  twilight  of  a  Sun- 
day night  to  bring  a  pair  of  shoes  from  the  neighboring 
cobbler  he  was  punished  on  his  return  for  whistling,  al- 
though the  offence  for  which  he  vicariously  suffered  was 
that  of  another  boy. 

The  years  are  not  longer  when  a  boy  is  bound  out; 
they  only  seem  longer.  They  finally  passed  in  Timothy's 
case.  The  contract  was  up  at  his  majority.  On  the  very 
day  when  he  became  of  age  he  was  given  the  stipulated 

314 


TIMOTHY    SMITH,    PIONEER 

sum  of  one  hundred  dollars  and  a  new  suit  of  homespun 
clothes.  The  relation  between  him  and  the  Tuckers  had 
been  from  the  first  strictly  one  of  contract.  Upon  its 
faithful  discharge  by  the  parties  of  both  parts  all  sense 
of  obligation  on  the  part  of  each  to  the  other  ceased.  Tim- 
othy Smith  was  now  his  own  master.  He  was  free  to 
seek  his  fortune  wherever  his  inclination  might  lead.  His 
relations  with  his  own  family  had  long  since  ceased  to 
be  intimate.  Neither  they  nor  the  Tuckers  assumed  to 
have  any  claim  upon  him,  much  less  a  right  to  suggest 
his  course. 

The  twenty  years  since  the  Treaty  of  Paris  had  wit- 
nessed great  changes  in  America.  At  the  close  of  the 
War  the  thirteen  original  States  were  intensely  provincial 
in  character.  Not  only  each  of  them,  but  every  community 
within  their  borders  was  well-nigh  a  law  unto  itself.  The 
means  of  transportation  were  of  the  poorest.  There  were 
a  few  stage-coaches  and  some  wagons,  but  travel  was 
generally  on  horseback.  Every  community  was  self- 
centred  and  jealous  of  its  privileges.  Indeed,  the  region 
along  the  Atlantic  seaboard  might  almost  be  described  as  a 
land  occupied  by  a  host  of  independent  and  self-governing 
village  communities.  The  general  assemblies  of  the  several 
States  exercised  some  authority,  but  executive  power  was 
held  in  suspicion  and  strictly  curbed.  The  shadowy  author- 
ity of  Congress  became  less  real  as  immediate  danger  from 
without  disappeared.  The  country  of  each  man  was  his 
own  town,  or  at  most  his  own  State.  The  only  bonds  of 
union  were  memories  of  common  sacrifices  and  achieve- 
ments in  the  French  and  Revolutionary  Wars,  the  friend- 

315 


ESSAYS  AND  ADDRESSES 

ships  and  influence  of  those  who  had  cooperated  in  those 
memorable  struggles,  and  the  then  new  ownership  in 
common  of  the  imperial  domain  known  as  the  Northwest 
Territory. 

Prior  to  the  French  and  Indian  War  the  colonists, 
occupied  with  the  settlement  of  the  Atlantic  seaboard  and 
held  in  check  by  the  forest  and  the  Indian,  had  scarcely 
climbed  to  the  top  of  the  Alleghanies  to  gaze  upon  the 
noble  heritage  awaiting  them  beyond.  The  struggle  be- 
tween the  French  and  English  for  supremacy  on  this  con- 
tinent led  Washington  and  Boquet  to  cut  roads  from 
Eastern  Virginia  and  Pennsylvania  to  the  Ohio,  and 
caused  the  soldiers  of  New  York  and  New  England  to  find 
a  way  by  river  and  portage  from  Albany  to  Lake  Ontario 
at  Oswego.  But,  at  the  close  of  the  war  and  for  many 
years  afterwards,  an  almost  impenetrable  forest  lay  over 
the  mountains  and  far  to  the  westward. 

John  Muir  beautifully  says  that  "the  forests  of 
America,  however  slighted  by  man,  must  have  been  a  great 
delight  to  God:  for  they  were  the  best  He  ever  planted. 
.  .  .  Wide-branching  oak  and  elm  in  endless  variety, 
walnut  and  maple,  chestnut  and  beech,  ilex  and  locust, 
touching  limb  to  limb,  spread  a  leafy  translucent  canopy 
along  the  coast  of  the  Atlantic  over  the  wrinkled  folds 
and  ridges  of  the  Alleghanies — a  green  billowy  sea  in 
Summer,  golden  and  purple  in  Autumn,  pearly  gray  like 
a  steadfast  frozen  mist  of  interlacing  branches  and  sprays 
in  leafless,  restful  Winter."  In  the  like  beautiful  words 
of  Francis  Parkman,  "One  vast,  continuous  forest  shad- 
owed the  fertile  soil,  covering  the  land  as  the  grass  covers 

316 


TIMOTHY    SMITH,   PIONEER 

a  garden  lawn,  sweeping  over  hill  and  hollow  in  endless 
undulation,  burying  mountains  in  verdure,  and  mantling 
brooks  and  rivers  from  the  light  of  day." 

The  final  struggle  with  the  French,  Pontiac's  con- 
spiracy, the  conquests  of  George  Rogers  Clark  and  others 
during  the  Revolutionary  War,  the  acquisition  of  the  ter- 
ritory beyond  the  mountains  westward  to  the  Mississippi, 
and  the  formation  of  the  more  perfect  union  of  the  Consti- 
tution led  to  the  mighty  migration  which  was  to  overcome 
the  forest  and  sweep  across  and  occupy  a  continent  within 
a  single  century.  This  migration  took  the  form  of  a  gen- 
eral movement,  and  what  we  know  as  "the  West"  steadily 
moved  onward  from  the  Atlantic  to  the  Pacific. 

This  westward  movement  was  well  begun  when,  in 
1804,  Timothy  Smith  arrived  at  his  majority.  It  was 
inevitable  that  the  young  man,  possessed  of  two  suits  of 
clothes  and  a  hundred  dollars  in  cash  and  free  to  go  where 
he  would,  should  be  drawn  into  it.  And  so,  late  in  the 
Autumn  of  that  year,  we  find  him  making  his  way  from 
Albany  by  water  over  the  old  Indian  and  military  route  — 
up  the  Mohawk,  past  the  castle  of  Sir  William  Johnson 
to  Rome,  over  the  Great  Carrying  Place  to  Wood  Creek, 
down  that  tortuous  stream  to  Lake  Oneida,  over  the  lake 
to  its  outlet,  and  down  the  Onondaga,  past  the  site  of  the 
ancient  capital  of  the  Iroquois  confederacy,  to  Oswego. 
Here  Smith  acquired  the  trade  of  blacksmith  and  pursued 
it  for  several  years. 

In  1808  he  settled  in  the  town  of  New  Haven,  some 
eight  miles  east  of  Oswego,  where  he  bought  a  tract  of 
forest  land  for  a  modest  sum.    Here  he  Hved  and  labored 

317 


ESSAYS  AND  ADDRESSES 

for  ten  years,  during  which  he  cleared  up  a  large  portion 
of  his  land  and  made  a  comfortable  home.  While  at  this 
time  he  lived  alone,  he  was  not  without  friends.  The 
neighborhood  was  largely  settled  by  Connecticut  people. 
Among  them  was  Joseph  Boynton  from  the  town  of 
Litchfield,  who  kept  a  tavern  on  the  road  leading  to  Os- 
wego. A  niece  of  his,  Lewe  Pond,  came  from  Litchfield 
on  a  visit  in  1817  and  remained  to  teach  school.  She  was 
a  daughter  of  Beriah  Pond  and  one  of  thirteen  children, 
ten  sons  and  three  daughters.  At  this  time  she  was  about 
thirty  years  of  age,  above  the  medium  height,  of  dignified 
bearing,  good-looking,  and  of  strong  character.  Her 
ancestry  included  the  Sanfords,  the  Porters,  and  several 
other  leading  Connecticut  families.  The  coming  of  this 
young  woman  quickly  proved  fatal  to  the  bachelor  life  of 
Timothy  Smith.  They  were  married  in  August,  1818; 
and,  for  a  wedding  journey,  made  their  first  and  final 
visit  to  Connecticut. 

We  hardly  realize  the  vast  changes  wrought  by  the 
progress  in  transportation  facilities  in  our  time.  It  has 
almost  banished  from  the  world  the  old  pathos  of  parting. 
At  the  time  of  which  we  wi*ite,  a  migration  from  the  East 
to  the  West  usually  meant  final  partings  between  those 
who  went  and  those  who  remained  behind.  How  sadly 
pathetic  were  such  partings,  the  letters  of  the  time  bear 
witness.  Members  of  families,  separated  by  only  a  few 
hundred  miles,  write  without  hope  of  meeting  this  side 
of  heaven. 

Nineteen  happy  years  now  swiftly  passed  over  the 
Smiths.    Within  these  years  there  came  to  them  two  daugh- 

318 


TIMOTHY    SMITH,    PIONEER 

ters  and  two  sons,  Mary  and  Elizabeth,  Henry  and 
Charles.  But  these  years  on  the  frontier  were  not  without 
their  trials.  In  1823  the  farm  was  lost,  through  the  breach 
of  a  bond  upon  which  Smith  had  become  surety  for  a  neigh- 
bor charged  with  some  offence,  conditioned  that  the  prin- 
cipal should  "keep  the  hmits  of  Oswego."  The  savings 
of  twenty  years  gone,  and  only  household  goods,  black- 
smith tools,  a  span  of  horses,  and  a  heifer  remaining,  the 
father  resumed  his  trade  for  three  years.  He  then  bought 
a  forest  tract  on  a  hillside  near  the  village  of  New  Haven 
and  cleared  up  another  farm.  But  this  did  not  prove  a 
satisfactory  venture.  The  new  farm  was  even  more  than 
usually  stony.  Each  ploughing  brought  to  the  surface  a 
new  crop,  and  ten  years  of  picking  up  stones  made  but  little 
impression. 

By  this  time  it  seemed  desirable  to  seek  a  wider  oppor- 
tunity on  the  receding  frontier.  Hence,  in  1837,  the  farm 
was  sold  for  a  thousand  dollars,  and  the  family  joined 
the  migration  that  was  setting  in  from  western  New  York 
into  northwestern  Pennsylvania.  It  was  this  region  that 
The  Holland  Land  Company  of  western  New  York  was 
now  opening  up  to  settlement ;  and  it  was  partly  due  to  its 
influence  that  the  northwestern  counties  of  Pennsylvania 
have  always  been  so  closely  related  to  the  adjoining  coun- 
ties of  New  York.  Smith  purchased  from  the  company 
two  hundred  acres  of  dense  forest  land  near  Oil  Creek, 
a  few  miles  southeast  from  the  site  of  Fort  Le  Boeuf, 
which  young  Major  Washington  visited  in  the  Winter  of 
1753-54  to  summon  Saint-Pierre,  the  French  commandant, 
to  leave  the  valley  of  the  Ohio. 

319 


ESSAYS  AND  ADDRESSES 

It  is  difficult  to  conceive  of  a  harder  task  of  its  kind 
than  that  now  entered  upon  by  Timothy  Smith  at  fifty- 
five  years  of  age,  to  create  from  the  wilderness  his  third 
farm.  The  settlement  was  new,  there  being  only  here  and 
there  a  clearing.  The  western  slope  of  the  valley  of  Oil 
Creek  was  then  densely  wooded  with  beech  and  maple.  Its 
eastern  slope  was  even  more  densely  covered  with  hemlock 
and  beech.  For  many  miles  in  every  direction  over  hills 
and  valleys  stood  as  heavy  a  forest  as  grew  anywhere 
save  in  the  far  West.  Immediately  and  for  miles  to  the 
eastward  the  dense  hemlock  woods  remained,  with  clear- 
ings at  intervals,  until  a  few  years  ago.  Smith's  purchase 
was  on  the  border  where  the  dark  hemlock  meets  the  lighter 
beech  and  maple.  Here  for  twenty-three  years  he  and  his 
two  sons  attacked  the  woods,  constructed  rail  and  stone 
fences,  and  built  ample  farm  houses  and  barns,  and  cleared 
one  hundred  and  fifty  acres  of  land,  creating  two  farms. 
In  the  meantime  other  settlers  came  and  slashed  and 
burned  half  the  forest  in  the  vicinity  and  westward  to  the 
Western  Reserve  in  Ohio.  A  cosy  village,  with  its  churches 
and  schools,  its  grist  mill  and  woollen  factory,  its  black- 
smith shop  and  tannery,  its  stores  and  tavern,  spread  itself 
comfortably  a  mile  away  on  the  banks  of  Oil  Creek.  The 
Philadelphia  and  Erie  Railroad  passed  ten  miles  to  the 
north ;  but  not  yet  had  the  locomotive  made  its  way  down 
the  creek  to  reach  the  newly  discovered  oil  wells  to  the 
southward.  In  lieu  of  this,  continuous  processions  of 
wagons  loaded  with  barrels  of  crude  petroleum  passed 
on  their  way  northward  by  every  travelled  road  during  the 
years  just  preceding  the  Civil  War. 

320 


TIMOTHY    SMITH,    PIONEER 

Changes,  more  personal,  came  to  the  family  of  Tim- 
othy Smith  within  these  years.  All  the  children  married. 
Mary  died  childless.  Elizabeth,  with  her  husband,  settled 
on  the  frontier  in  Missouri.  Henry  and  Charles,  with 
their  children,  remained  on  the  farms  which  they  had 
helped  the  father  to  create  from  the  wilderness.  The  title 
to  both  farms  remained  without  question  in  the  old  pioneer. 

We  may  here  pause  in  our  narrative  to  consider  the 
attitude  of  Timothy  Smith  toward  religion  and  politics, 
the  two  all-absorbing  subjects  of  interest  to  the  plain  men 
of  his  time.  The  religious  influences  which  so  dominated 
the  training  of  his  early  years  left  their  deep  impress  upon 
him.  In  character  and  morals  he  was  a  stern  and  unyield- 
ing Puritan  to  the  end.  He  had  revolted  from  the  harsh 
theology  of  Jabez  Holbrook,  and  the  sepulchral  piety 
that  was  the  very  atmosphere  of  the  Tucker  home.  To 
the  disquiet  of  the  members  of  his  family,  he  always  refused 
publicly  to  confess  the  orthodox  faith.  This  course  was 
no  doubt  somewhat  due  to  the  roughness  of  the  frontier 
settlements  in  which  he  lived  and  to  the  unattractiveness 
of  their  infant  and  struggling  churches.  In  his  later  years 
he  claimed  to  be  a  Universalist,  but  it  is  not  certain  that 
he  ever  clearly  knew  what  the  Universalists  believe.  He 
no  doubt  understood  their  faith  to  embrace  a  scheme  of 
salvation  sufficiently  elastic  to  include  him.  In  a  time 
when  religion  was  cultivated  chiefly  as  a  means  of  escape 
from  eternal  punishment,  this  was  the  one  really  vital  con- 
sideration, and  he  seems  to  have  felt  secure  to  the  last. 
He  was  tolerant  of  the  religious  views  of  others  and  would 
not  join  in  religious  discussions.    After  his  removal  from 

321 


ESSAYS  AND  ADDRESSES 

Connecticut  he  never  regularly  attended  church  services, 
but  left  that  privilege  and  duty  to  the  other  members 
of  the  family.  To  his  wife  he  tacitly  committed  the  religi- 
ous training  of  their  children.  She  did  not  find  Congre- 
gational churches  on  the  frontier,  and  so  identified  herself 
with  the  Presbyterians,  with  whom  she  felt  entirely  at 
home.  All  the  children  became  members  of  their  mother's 
church  as  they  neared  maturity,  and  later  shared  her  con- 
cern for  the  father's  spiritual  welfare.  While  he  did  not 
himself  wish  to  avow  the  orthodox  faith,  he  was  no  doubt 
glad  of  his  wife's  earnest  Christian  character,  and  glad  to 
have  her  give  to  their  children  an  affirmative  Christian 
training  in  which  he  was  w^ithout  inclination  to  participate. 
For  himself  he  had  acquired  the  very  spirit  of  Christianity 
free  from  the  dogmatism  of  his  day.  By  character  and 
conduct  he  commended  that  spirit  to  all  who  knew  him. 
In  his  inner  as  well  as  outer  life  he  was  unconsciously  a 
pioneer.  His  faith  was  not  less  deep  or  real  because  tol- 
erant. It  but  anticipated  the  simple  but  genuine  faith 
of  our  time. 

It  was  probably  due  as  much  to  his  lack  of  sympathy 
with  the  religious  formalism  which  then  found  such  con- 
stant expression  in  private  letters,  as  to  his  lack  of  school- 
ing, that  Timothy  Smith  left  the  family  correspondence 
to  his  wife.  Her  education  was  better  than  his  and  she 
became  the  family  letter  writer.  Her  correspondence 
breathes  the  deep  pathos  of  hopeless  family  separation 
already  noted.  It  expresses  the  consciousness  of  nearness 
to  the  inevitable  tragedy  of  life,  so  common  to  the  people 
of  her  time.    It  also  discloses  their  anxious  concern  for  the 

322 


TIMOTHY    SMITH,    PIONEER 

spiritual  welfare  of  kinsmen  and  friends.  To  them  escape 
from  eternal  punishment  was  the  opportunity  of  life,  and 
orthodox  conversion  and  confession  of  faith  the  one  means 
of  its  improvement.  Abraham,  a  brother  of  Timothy,  from 
his  Connecticut  farm  at  Oxford  writes:  "Having  heard 
nothing  from  you  for  a  number  of  years,  I  write  hoping 
that  you  are  yet  in  the  land  of  the  living  enjoying  the 
comforts  of  life  and  especially  living  in  the  light  of  God's 
reconciled  countenance,  for  it  must  be  a  gloomy  thought 
for  an  old  man  spending  the  evening  of  his  days  without 
any  well-grounded  hope  of  eternal  life.  .  .  .  There 
is  a  blessing  that  is  of  more  value  than  health,  riches,  honor, 
friends.  Do  you  enjoy  that  blessing?  If  you  do,  rich  are 
you  indeed.  If  you  do  not,  you  are  miserably  poor  what- 
ever your  worldly  possessions."  Again  he  writes:  "I 
know  the  Lord  does  hear  and  answer  prayer,  but  the 
prayers  of  friends  will  not  avail.  If  you  wish  salvation,  j^ou 
must  ask  for  it  yourself.  He  that  asketh  receiveth,  and 
he  that  seeketh  findeth.  This  is  indeed  a  changing  world. 
While  we  are  in  life,  we  are  in  death.  There  is  but  little 
time  for  this  world."  Lewe  herself  writes  to  her  daugh- 
ter: "  Your  mother  is  yet  spared.  The  Lord  is  good  unto 
me  in  sparing  my  life  from  day  to  day,  unprofitable  as  it 
is."  A  brother  writes  her:  "We  are  all  getting  really 
old.  I  cannot  stay  much  longer.  My  birthday  has  passed 
over  me  fifty-five  times." 

A  brother  who  went  to  Georgia  early  in  1821,  married, 
and  prospered  there,  writes  her  in  1846:  "I  am  very 
desirous  to  hear  of  our  aged  mother.  I  know  she 
must  be  very  old  if  she  be  yet  alive.    I  begin  to  feel  that 

323 


ESSAYS  AND  ADDRESSES 

I  am  growing  old,  but  some  of  my  brothers  and  sisters 
are  older.  Are  they  still  alive?  and  how  do  they  do?  and 
more  than  all,  how  are  they  in  the  great  matter  of  living — 
the  preparation  for  dying?"  In  1856,  he  writes:  "Your 
welcome  letter  is  the  first  word  I  have  had  from  a  single 
relation  of  mine  in  some  two  or  three  years.  Indeed  I 
have  never  had  a  letter  from  any  of  them  but  you  in  all 
these  thirty-five  years  or  more  I  have  been  here.  My  mind 
every  day  runs  away  to  my  distant  mother  and  brothers 
and  sisters.  .  .  .  Our  three  eldest  cliildren  are  mem- 
bers of  our  church  and  we  hope  for  them,  but  cannot  say 
that  they  are  as  devotedly  pious  as  we  could  wish.  The 
youngest  of  the  three  seems  most  devoted.  It  would  do 
you  good  to  see  her.  Of  the  other  five  younger  ones,  I 
have  room  only  to  say,  and  to  thank  God  that  I  can  say, 
they  are  all  fine  children.  We  have  equal  numbers  of  boys 
and  girls — four  each  and  two  in  heaven.  Our  youngest 
is  between  three  and  four  years  old  and  a  very  sweet,  hand- 
some, and  smart  little  fellow, — but  we  love  him  too  much, 
so  I  am  afraid  every  day  that  Our  Heavenly  Father  will 
take  him.  I  hope  all  yours  are  safely  included  in  the  cov- 
enant of  grace.  .  .  .  My  dear  good  sister,  you  call  on 
me  to  help  you  praise  God  for  His  goodness  to  you.  I 
am  ashamed  that  I  do  not  praise  Him  as  I  ought  for  His 
goodness  to  me.  Surely  goodness  and  mercy  have  fol- 
lowed me  all  the  days  of  my  Hfe."  Again,  in  1857,  he 
writes:  "I  thank  God  that  our  aged  mother  is  yet  alive. 
I  am  very  anxious  that  she  should  hear  from  me  once  more, 
and  be  assured  I  love  her  still,  and  do  earnestly  pray 
almost  every  day  that  the  good  Lord  will  be  gracious  to 

324 


TIMOTHY    SMITH,    PIONEER 

her  and  deal  kindly  with  her  whilst  she  lives,  and  that  He 
will  grant  her  the  consolations  of  His  grace  and  joy  and 
peace  in  believing,  and  that  hope  w^hich  shall  abundantly 
sustain  her  until  she  be  taken  up  to  live  with  Him  forever." 
Such  were  the  messages  sent  and  received  by  the  plain 
people  who  did  the  mighty  pioneer  work  of  their  time. 
Their  lives  were  simple  and  related  to  but  few  facts.  They 
took  life  seriously;  they  were  sincere  if  not  broad.  They 
knew  only  a  few  things.  These  had  large  relations,  and 
with  them  they  lived  on  terms  of  great  familiarity.  Like 
all  who  read  little  they  saw  clearly  and  heard  distinctly. 
They  knew  the  contents  of  one  great  book,  and  that  the 
greatest  of  all.  The  very  expression  of  their  anxiety 
whether  loved  ones  left  behind  were  yet  alive,  their  con- 
sciousness of  the  nearness  of  death  and  the  presence  of 
God,  show  how  deeply  that  book  influenced  their  thought 
and  speech.  It  was  because  they  were  above  all  alive  to 
moral  issues  that  they  were  unable  to  ignore  the  cry  of 
the  slave.  They  could  not  long  be  held  responsible  for 
legalized  injustice. 

The  one  great  and  abiding  interest  that  made  the  clear- 
ing and  cultivation  of  farms  something  else  than  the 
drudgery  to  Timothy  Smith  was  politics.  His  memory 
went  back  to  the  struggle  for  the  Constitution.  Upon 
the  first  formation  of  national  political  parties  he  became 
a  Federalist.  He  refused  to  yield  to  the  successive  waves 
of  Democracy  that  swept  over  the  land  under  the  leader- 
ship of  Jefferson  and  Jackson.  In  due  course  he  became 
a  Whig,  an  Abolitionist,  and  finally  a  Republican.  He 
was  always  and  everywhere  ready  to  defend  and  advocate 

325 


ESSAYS  AND  ADDRESSES 

his  political  faith.  For  many  years  he  subscribed  for  "  The 
Evangelist,"  a  Presbyterian  weekly,  for  his  wife,  and 
"The  New  York  Weekly  Tribune,"  for  himself.  While 
he  read  little  else  he  kept  well-informed  touching  political 
movements.  As  the  anti-slavery  conflict  deepened  he 
became  more  and  more  absorbed  in  it.  The  cause  of 
slavery  aroused  his  Puritan  conscience  as  it  was  never 
before  aroused.  He  abhorred  slavery  as  an  unholy  thing. 
More  and  more  he  came  to  feel  a  personal  responsibility 
for  it,  because  of  its  protection  under  national  law.  He 
had  many  sharp  personal  debates  with  his  Democratic 
neighbors,  and  some  of  these  led  to  ill  feeling.  He  was 
known  for  miles  around  as  an  Abolitionist,  and  was  among 
the  first  to  join  the  Republican  party  upon  its  formation. 
Whether  his  political  views  were  popular  had  not  the 
slightest  effect  on  his  faith  in  their  soundness.  He  was 
a  non-conformist  to  the  core.  He  always  rejoiced  in  the 
independence  of  the  farmer's  life,  claiming  that  tradesmen 
and  professional  men  cannot  be  and  are  not  free  to 
think  and  act  independently.  He  was  wont  to  say:  "My 
grain  and  my  hogs  bring  the  same  price  whether  folks  like 
my  politics  or  religion  or  not." 

The  year  1859  brought  a  heavy  blow  to  the  family. 
The  oldest  son  and  his  wife  died,  leaving  four  small  chil- 
dren, two  boys*  and  two  girls.  Their  mother's  family 
desired  to  take  two  of  the  children,  but  the  old  man  would 
not  have  it  so.  The  members  of  their  mother's  family 
were  leading  Democrats  in  the  village,  and  Timothy  Smith 
was  not  then  in  a  state  of  mind  to  permit  any  of  his  grand- 

*The  elder  of  these  boys  was  Edwin  Burritt  Smith. 

826 


TIMOTHY  SMITH,  PIONEER 

children  to  be  brought  up  as  Democrats.  For  some  time 
he  had  talked  of  removing  to  Illinois,  but  had  not  been 
taken  seriously.  Now,  the  oil  excitement  having  raised 
the  price  of  land,  he  and  his  son  Charles  concluded  to  sell 
and  again  seek  the  frontier,  taking  all  the  children  with 
them.  They  arrived  at  a  way  station  on  the  Wabash 
Railroad  a  few  miles  east  of  Decatur  early  in  1860,  on 
the  eve  of  the  political  campaign  of  that  memorable  year. 

Those  who  only  know  central  Illinois  as  it  now  ap- 
pears can  never  realize  what  it  was  less  than  forty  years 
ago.  The  Illinois  Central  and  Wabash  Railroads  were 
then  but  recently  completed.  Much  of  the  land  granted 
to  aid  the  Illinois  Central  was  still  owned  by  the  company. 
The  great  prairie  lying  east  of  Decatur  and  south  of  the 
Sangamon  River  was  still  almost  undisturbed.  The  early 
settlers,  most  of  them  from  Kentucky  and  southern  In- 
diana, occupied  the  lands  adjacent  to  the  timber  along 
the  river.  Each  farm,  as  a  rule,  had  a  wood  lot  of  a  few 
acres  on  the  Sangamon.  Small  villages  situated  about 
four  miles  apart  were  gro^^ing  up  along  the  Wabash  Rail- 
road. Between  the  river  and  these  villages  the  prairie 
lands  had  been  "taken  up 'and  were  in  process  of  im- 
provement, some  of  them  having  been  given  by  the  gov- 
ernment to  veterans  of  the  Mexican  War.  Beyond  the 
railroad  to  the  south  one  might  go  from  a  dozen  to  twenty 
miles  over  unbroken  prairie.  The  country  was  flat  and 
without  drainage.  How  wet  and,  when  it  rained,  how 
muddy  it  was,  seems  now  incredible. 

The  great  prairie  was  one  vast  meadow  on  a  black  soil 
of  unsurpassed  fertihty.    It  was  covered  with  waving  grass 

327 


ESSAYS  AND  ADDRESSES 

and  at  different  seasons  with  white  and  pink,  purple  and 
yellow,  wild  flowers,  many  of  them  of  great  size.  On  the 
higher  ground  the  grass  grew  from  two  to  three  feet,  and 
in  the  numerous  ponds  and  swamps,  from  six  to  ten  feet 
high.  In  many  of  the  ponds  the  water  stood  the  year 
round.  And  this  was  still  the  home  of  a  great  population 
of  insects  and  snakes,  rabbits  and  prairie  wolves,  birds  and 
fowl.  Wild  ducks  and  geese  and  blue  cranes  were  so 
nimierous  that  great  flocks  of  them  might  always  be  seen 
and  heard  in  their  season.  Prairie  chickens  were  so  abun- 
dant that  their  deep  booming  made  every  horizon  ring  on 
spring  mornings.  Whether  the  prairie  would  ever  be 
entirely  settled  was  still  among  the  settlers  a  mooted 
question.  Many  believed  that  men  could  not  or  would 
not  live  more  than  five  miles  from  "the  timber"  along 
the  river;  and  that  beyond  that  the  prairie  would  always 
remain  unbroken.  All  of  it  has  long  since  been  occupied 
and  tile-drained.  No  trace  of  a  pond  or  swamp  remains. 
Prairie  farms  now  sell  at  from  seventy-five  to  one  hundred 
dollars  per  acre. 

Timothy  Smith,  upon  his  arrival  in  Illinois,  was  in  his 
seventy-eighth  year.  Though  he  was  yet  hale  and  hearty, 
he  felt  unequal  to  farm  work,  and  was  finally  persuaded 
to  give  up  all  but  the  chores  about  the  house  and  garden. 
He  built  a  house  in  the  village  for  himself  and  wife,  his 
widowed  daughter,  and  some  of  the  grandchildren. 
Charles  bought  a  partially  improved  farm  near  by  on  the 
edge  of  the  unoccupied  prairie. 

And  now  came  the  election  of  1860,  followed  by  the 
terrible  ordeal  of  civil  war.     The  old  man  found  himself 

328 


TIMOTHY    SMITH,   PIONEER 

in  the  country  of  "Honest  Abe  Lincoln."  Most  of  the 
older  settlers  had  seen  and  heard  Mr.  Lincoln  in  court  at 
Decatur  or  Monticello.  Of  these  not  a  few  claimed  a 
friendly  acquaintance  with  him.  Stephen  A.  Douglas 
was  also  well  known  to  many.  Both  great  leaders  had 
warm  personal  friends  among  the  hardy  pioneers  who  had 
come  to  Illinois  to  turn  its  prairies  into  grain  fields  and 
make  the  State  a  political  battle  ground.  There  was  of 
course  no  question  as  to  the  choice  of  Timothy  Smith.  He 
became  intensely  interested  in  behalf  of  the  success  of  the 
Republican  cause,  and  soon  shared  in  the  local  enthusiasm 
for  its  leader. 

The  election  over,  only  those  who  lived  through  the 
years  of  civil  strife  can  now  realize  the  anxiety  and  sus- 
pense, the  hopes  and  fears,  the  alternations  of  joy  and 
grief,  of  those  who  remained  at  home.  The  family  fully 
shared  these  experiences.  A  brother-in-law  of  Charles 
was  among  the  first  to  enlist.  He  was  taken  prisoner  and 
held  in  Libby  Prison.  When  finally  exchanged  he  was  so 
broken  in  health  that  he  soon  died.  From  New  York 
and  Connecticut  four  of  Timothy's  nephews  went  to  the 
front.  To  his  great  grief  some  of  his  Georgia  nephews 
were  engaged  on  the  other  side.  One  of  his  nephews  from 
the  North  was  killed  at  Bull  Run;  another  was  mortally 
wounded  at  Fair  Oaks.  Upon  the  latter's  death  his  mother 
writes:  "I  think  Christians  ought  to  lie  low  in  the  dust 
before  God  and  cry  unto  Him  day  and  night  that  he  would 
spare  this  nation.  We  are  being  sorely  punished  for  our 
sins." 

The  old  man's  faith  in  the  cause  of  the  Union  did  not 

329 


ESSAYS  AND  ADDRESSES 

falter  nor  his  purpose  change  because  of  these  personal 
bereavements.  He  had  read  to  him  every  item  of  war 
news,  and  talked  for  hours  with  soldiers  home  on  furlough 
of  their  experiences  in  the  field.  It  was  impossible  for  any 
one,  not  in  a  place  of  responsibility,  to  be  more  concerned 
for  the  success  of  our  arms.  The  cause  of  the  Union  was 
on  his  heart  and  he  followed  every  step  of  the  President 
and  his  lieutenants  with  a  supreme  anxiety.  The  death 
struggle  in  which  the  nation  was  engaged  was  the  culmina- 
tion of  the  political  movements  in  which  he  had  humbly 
shared,  and  which  had  formed  the  one  great  study  and 
interest  of  his  life.  As  the  conflict  deepened  he  came  more 
and  more  to  rely  upon  the  persistence,  the  strength,  and 
the  wisdom  of  Abraham  Lincoln.  Indeed,  Lincoln  stood 
forth  before  the  world  the  very  embodiment  of  the  char- 
acters and  ideals  of  such  men  as  he.  The  great  conmioner 
had  risen  above  the  plain  people  all  over  the  land  whose 
prophet  and  leader  he  was,  without  ceasing  to  be  what 
they  were.  It  was  this,  in  the  words  of  Carl  Schurz,  that 
"made  his  so  fascinating  a  character  among  his  fellow 
men,  gave  him  his  singular  power  over  their  minds  and 
hearts,  and  fitted  him  to  be  the  greatest  leader  in  the  great- 
est crisis  of  our  national  life." 

The  war  was  not  the  only  trouble  that  came  to  the 
family  of  Timothy  Smith.  The  prairie  of  Illinois  was  in 
wet  seasons  one  vast  malarial  swamp.  Within  five  years 
five  members  of  the  family  died,  including  early  in  1865 
his  son  Charles,  who  had  long  been  in  feeble  health.  But 
still  the  old  man  and  his  wife  lingered.  It  was,  it  seems, 
decreed  that  he  should  live  to  see  the  triumph  of  the  cause 

330 


TIMOTHY    SMITH,    PIONEER 

which  was  now  the  supreme  interest  of  his  life.  The 
death  of  his  last  surviving  son  was  a  great  blow  from  which 
he  never  recovered.  Already  broken  in  strength  he  took 
to  his  bed  in  February,  1865.  For  several  weeks  his  life 
hung  in  the  balance.  Early  in  March  he  seemed  better 
and  asked  to  have  Lincoln's  Second  Inaugural  read  to  him. 
That  inspired  utterance  went  to  his  very  heart.  It  satis- 
fied him  and  was  an  adequate  expression  of  what  he  felt, 
but  could  not  himself  express.  Still  he  lingered,  awaiting 
the  final  announcement  that  the  Union  was  saved.  April 
ninth  came,  and  with  it  the  surrender  of  Lee.  From  the 
New  York  Tribune  was  read  to  him  the  editorial  "Lee 
Surrenders,"  in  part  in  these  words: 

Lee  has  surrendered.  Our  struggle  is  over;  the  new 
birth  of  the  nation  is  accomplished;  the  revolution,  begun 
a  hundred  years  ago,  is  fulfilled;  Republicanism,  tried  by 
the  severest  test  to  which  it  can  ever  be  put,  is  triumphant ; 
domestic  treason  is  utterly  suppressed  and  punished;  free- 
dom is  extended  to  all  the  people ;  that  all  men  are  created 
free  and  equal  is  no  longer  an  abstract  principle,  but  the 
faith  and  the  foundation  of  a  nation;  the  South  is  con- 
quered, the  Rebellion  over,  and  peace  immediate  with  a 
Union  restored  and  purified.  .  .  .  The  good  fight 
has  been  fought;  the  Right  has  triumphed.  We  are  a 
Nation,  no  longer  divided  against  itself,  but  one,  indivisi- 
ble, united,  free.  .  .  .  The  Repubhc  is  saved  forever 
from  its  great  curse  and  shame.  It  will  not  be  divided; 
it  will  all  be  free. 

The  joy  of  the  old  pioneer  was  too  great  for  his  feeble 
strength.  He  became  worse,  his  mind  remaining  clear. 
The  dearest  wish  of  his  life  was  realized.  It  was  enough 
for  him  that  his  country  was  saved;  that  it  had  ceased  to  be 

divided. 

331 


ESSAYS  AND  ADDRESSES 

April  15,  1865,  was  a  warm  spring  day  on  the  prairie. 
The  door  was  opened  late  in  the  forenoon  to  let  in  the 
fragrance  of  the  early  spring  flowers.  Suddenly  Herhert 
Jones,  the  sixteen-year-old  son  of  the  keeper  of  the  cor- 
ner store,  came  running  down  the  middle  of  the  street, 
shouting  between  his  sobs:  "Lincoln  is  killed!  Lincoln 
is  killed!  What  shall  we  do?  What  shall  we  do?"  The 
startling  annoimcement  reached  the  old  man's  ears.  The 
shock  was  too  great  for  his  waning  strength;  he  sank 
back  fainting.  While  the  world  poured  out  its  grief  at 
the  bier  of  the  great  commoner  who  had  saved  the  Union, 
the  mortal  remains  of  one  of  his  plain)  people  were  tenderlj' 
laid  at  rest  beneath  the  sod  of  Illinois. 


332 


TRUSTS:   THEIR  LEGAL   STATUS* 

rpHE  word  "trust"  has  become  a  term  of  indefinite 
meaning.  It  was  appropriately  employed  a  few 
years  ago  to  designate  the  holding  by  trustees  of  the  con- 
trolling stocks  of  several  competing  corporations  to  effect 
their  practical  consolidation.  The  oil  and  sugar  trusts 
w^ere  notable  illustrations  of  this  form  of  industrial  com- 
bination to  limit  or  destroj^  competition.  The  term 
"trust,"  as  now  used,  may  be  loosely  defined  as  a  com- 
bination of  the  productive  forces  in  a  given  industry  to 
create  a  monopoly  by  which  to  control  production,  reduce 
expenses,  and  raise  prices.  Its  final  and  most  perfect  form 
is  the  monopoly  corporation  to  own  and  operate  all  the 
properties  involved.  True,  the  term  covers  all  "pools," 
"associations,"  "understandings,"  "gentlemen's  agree- 
ments," and  combinations  of  every  sort  to  restrict  produc- 
tion, reduce  expenses,  and  control  prices.  These  are, 
however,  but  steps  in  a  vast  industrial  evolution  or  revolu- 
tion. They  are  steadily  making  way  for  the  incorporated 
trust.  The  real  question  lies  between  organized  society 
on  the  one  hand  and  the  mighty  monopoly  corporation  on 
the  other.  When  the  final  issue  is  joined  it  will  be  found 
that  the  forces  of  monopoly  have  retired  from  the  open 
field  of  clearly  illegal  engagements  to  the  strongly  fortified 
camp  of  incorporation. 

Every  lover  of  definite  language,  every  lawyer  who 

*  Reprinted  from  "  Self  Culture,"  August,  1899. 

333 


ESSAYS  AND  ADDRESSES 

cherishes  the  grand  old  word  "trust"  as  used  in  equity 
jurisprudence,  joins  with  Mr.  Aldace  F.  Walker  in  de- 
ploring its  transformation  in  popular  speech  into  a  term 
of  opprobrium.  To  lawyers  it  will  hereafter  have  two 
distinct  meanings,  one  definite  and  true  in  equity  juris- 
prudence, the  other  indefinite  and  opprobrious  to  describe 
combinations  for  ends  hostile  to  public  policy. 

The  recent  rapid  formation  of  trusts,  "the  rush  to  in- 
dustrial monopoly,"  is  the  source  of  great  and  growing 
popular  apprehension.  It  seems  to  be  working  in  our 
midst  a  stupendous  industrial  revolution.  The  end  cannot 
be  foreseen.  The  gathering  storm  may  prove  to  be  a 
destroying  cyclone  or  but  the  precursor  of  a  better  indus- 
trial day.  Be  this  as  it  may,  it  is  now^  both  possible  and 
wise  to  inquire  into  the  legal  status  of  the  monopoly  cor- 
poration and  to  take  stock  of  the  resources  with  which 
organized  society  is  equipped  to  meet  this  modern  form 
of  feudalism.  This  calls  for  a  somewhat  elementary  in- 
quiry into  the  nature  and  function  of  the  corporation  and 
its  proper  relations  to  the  individual  and  to  organized 
society. 

The  individual  is  the  natural  industrial  unit.  In  a 
state  of  entirely  free  competition  each  individual  would 
freely  compete  with  all  others.  None  would  receive  aid 
from  any  other  or  from  the  law  of  the  land.  Whether 
these  conditions  long  prevailed  anywhere,  or  were  indeed 
possible  save  in  primitive  society,  we  need  not  here  inquire. 
Whether  they  were  ever,  or  would  now  be,  desirable,  it 
is  too  late  to  consider.  We  may  note  in  passing  that  the 
assumption  by  the  courts  that  they  are  still  largely  both 

334 


TRUSTS:   THEIR  LEGAL   STATUS 

possible  and  desirable  lies  at  the  root  of  many  decisions 
at  common  law  touching  the  illegality  of  "monopolies" 
and  agreements  in  restraint  of  trade.  If  they  had  pre- 
vailed, every  business  would  be  owned  and  conducted  by 
an  individual. 

The  land,  its  control  and  cultivation,  long  almost  ex- 
clusively occupied  man.  Trade  was  limited  and  mainly 
local.  Access  to  the  sea  alone  gave  opportunity  for  com- 
merce. The  means  of  transportation  afforded  by  the  sea 
were  open  to  all  on  easy  terms,  and  any  general  commer- 
cial monopoly  was  impossible.  Early  in  the  vast  industrial 
development  of  modern  times  the  advantages  of  some  asso- 
ciation of  effort  and  capital  became  obvious.  To  secure 
these,  combination  was  inevitable.  This  at  first  took  the 
form  of  copartnership.  Two  individuals,  by  combination 
of  effort  and  capital,  could  of  course  do  at  less  expense 
and  with  greater  economy  of  plant  and  effort  what  they 
could  do  separately.  They  could  also  by  such  association 
limit  or  suppress  local  competition.  For  example,  two 
competing  bakers  having  each  a  shop,  an  oven,  a  journey- 
man, and  an  apprentice,  could  by  combination  save  rent 
and  fuel,  reduce  waste,  and  perhaps  dispense  with  all 
assistance.  If  the  only  bakers  in  the  village,  their  co- 
partnership established  a  monopoly.  Yet  this  did  not 
constitute  an  offence  at  common  law.  They  might,  in 
combination  as  copartners,  even  temporarily  reduce  prices 
to  prevent  or  stifle  competition. 

Under  these  conditions  copartnership  in  time  shared 
with  individuals  almost  the  entire  field  of  industry  and 
trade.     Though  as  a  rule  in  control  of  the  larger  enter- 

335 


ESSAYS  AND  ADDRESSES 

prises,  the  copartnership  did  not  drive  to  the  wall  the 
individual  manufacturer  and  merchant.  Individuals,  and 
combinations  of  other  individuals  by  way  of  copartnership, 
engaged  as  competitors  on  terms  not  seriously  unequal  in 
similar  branches  of  industry  and  trade. 

The  next  step  in  the  march  of  combination  was  the 
employment  of  the  corporation  as  an  instrument  of  indus- 
try and  trade.  The  copartnership  had  appeared  to  sup- 
plement individual  effort  and  capital,  and  thus  make 
possible  larger  enterprises.  The  corporation  followed  to 
supplement  both,  and  thus  provide  for  still  larger  and 
more  stable  undertakings.  Between  the  first  and  second 
of  these  there  is  no  sharp  distinction.  Between  them  and 
the  industrial  or  trading  corporation  there  is  a  definite  line. 

Individuals,  whether  acting  alone  or  as  copartners, 
appear  in  the  world  of  industry  and  trade  as  natural  per- 
sons. Each  stakes  all  that  he  is  and  has,  and  all  that  he 
hopes  to  be  and  acquire.  His  business  may  employ  only 
a  fraction  of  his  capital,  and  but  little  of  his  personal 
effort,  yet  he  embarks  his  all  in  the  enterprise.  The  in- 
dividual, his  good  name,  his  possessions,  his  prospective 
acquirements,  stand  sponsor  for  every  action.  These 
hostages  to  good  conduct  "are  impediments  to  great  enter- 
prises." Few  men  will  risk  so  much  beyond  the  power 
of  their  personal  ability  of  control.  Then,  too,  the  copart- 
nership depends  on  the  continuance  of  a  good  understand- 
ing among  its  members.  Its  dissolution  by  the  act  or 
deatli  (jf  any  member  is  always  imminent.  Individual 
enterprise  and  copartnership  combination  in  industry  and 
trade  have  thus  distinct  and  general  limitations.     They 

336 


TRUSTS:   THEIR  LEGAL   STATUS 

are  affected  by  the  mutability  of  human  life  and  bounded 
by  personal  limitations. 

The  corporation  is  subject  to  no  such  restrictions.  It 
is  impersonal  in  character.  It  is  without  relations  beyond 
the  enterprise  for  which  it  is  organized.  It  risks  nothing 
but  the  capital  which  it  employs.  It  may  grow  to  any 
dimensions.  Its  field  may  be  the  world.  If  not  immortal, 
its  mortality  is  not  to  it  an  ever-present  menace.  No  cloud 
projects  a  shadow  beyond  its  insolvency.  Failure  brings 
to  it  nothing  but  death  and  oblivion.  Those  who  own  and 
breathe  into  it  the  breath  of  life  stake  nothing  but  the 
purchase-price  of  their  holdings  of  its  stock.  Protected 
and  shielded  by  it  from  personal  responsibility,  and  even 
from  the  public  gaze,  they  quietly  determine  its  every 
act  and  absorb  the  profits  that  result.  If  disaster  comes, 
they  beat  a  well-ordered  retreat,  leaving  the  wreckage  to 
the  creditors.  Such  are  the  characteristics  of  the  imper- 
sonal colossus,  of  unlimited  powers  and  limited  liabilities, 
that  now  threatens  the  very  foundations  of  public  order. 

The  private  corporation,  it  should  always  be  remem- 
bered, is  wholly  a  creature  of  law.  As  the  public  welfare 
is  the  first  and  last  concern  of  law,  it  should  provide  for 
and  protect  private  corporations  only  to  the  extent  that 
such  artificial  combinations  of  private  citizens  subserve 
the  public  good.  Their  only  justification  must  be  found 
in  the  public  need  for  the  combination  of  the  efforts  and 
capital  of  many  individuals  to  carry  forward  enterprises 
of  public  utility,  which  are  beyond  the  ability  of  natural 
persons,  whether  acting  alone  or  in  partnership,  to  under- 
take.   The  rigid  observance  of  this  limitation  would  have 

337 


ESSAYS  AND  ADDRESSES 

made  impossible  many  of  the  grave  corporate  abuses 
from  which  societj'^  now  suffers.  It  would  have  confined 
the  sphere  of  private  corporations  to  public  or  quasi-public 
enterprises  of  great  magnitude,  such  as  the  telegraph, 
transportation,  lighting,  banking,  and  possibly  mining,  and 
a  few  other  great  industries.  In  lieu  of  this  reasonable 
employment  of  the  private  corporation  in  the  field  lying 
beyond  ordinary  private  enterprises  we  have  permitted 
and  even  encouraged  it  to  invade  all  occupations,  there 
to  enter  upon  unequal  terms  into  a  war  of  extermination 
against  individuals.  In  almost  every  State  any  one,  aided 
by  a  few  dummies  who  merely  sign  their  names,  may  in- 
corporate for  any  purpose  which,  as  he  chooses  to  state  it, 
is  not  illegal.  Indeed,  in  many  States,  no  unpleasant 
questions  are  asked  as  to  the  purpose.  The  issue  of  char- 
ters of  incorporation  to  all  comers,  usually  for  nominal 
fees,  has  become  merely  a  clerical  function.  The  desire 
of  any  adventurer  to  escape  personal  liability  for  his  acts, 
of  any  number  of  persons  engaged  in  any  business  what- 
ever to  combine  and  place  at  disadvantage  their  competi- 
tors, now  controls  the  issue  of  charters  of  incorporation. 
Thus  the  public  need — the  only  true  test  of  corporate 
combination — has  everywhere  given  way  to  private  greed. 
Here  lies  the  root  of  the  noxious  growth  which  we  know 
as  the  monopoly  corporation.  If  corporate  combination 
was  strictly  limited  to  public  requirements  for  the  conduct 
of  enterprises  beyond  the  scope  of  ordinary  individual 
initiative,  the  problem  of  the  trust  would  be  relatively  a 
simple  one. 

The  private  corporation  as  the  child  of  positive  law 

338 


TRUSTS:   THEIR  LEGAL   STATUS 

has  the  characteristics  with  which  that  law  has  endowed  it. 
If  found  to  be  other  than  an  obedient  servant  of  the  peo- 
ple, if  not  a  factor  making  for  the  common  welfare,  the 
law  is  at  fault.  An  artificial  distinction  between  the  cor- 
poration and  the  individual  lies  in  the  interpretation  which 
has  been  given  to  that  clause  of  the  United  States  Con- 
stitution which  provides  that  no  State  shall  "pass  any  law 
impairing  the  obligation  of  contracts."  Had  this  clause 
been  held  simply  to  affect  the  contracts  of  natural  persons 
and  like  engagements  between  them  and  private  corpora- 
tions or  the  State,  and  not  those  between  such  corporations 
and  the  State,  the  monopoly  corporation  would  not  to-day 
in  America  dispute  the  field  with  public  authority. 

The  famous  leading  case  of  Dartmouth  College  vs. 
Woodward*  prepared  the  way  for  a  construction  of  this 
clause  of  the  Constitution  under  which  the  charter  of  every 
private  corporation  becomes  at  once  a  contract  between 
the  State  and  its  offspring,  whose  obligation  may  not 
be  impaired  by  subsequent  legislation.  This  rule,  in  view 
of  the  reckless  prodigality  with  which  charters  are  issued, 
as  already  noted,  operates  greatly  to  the  prejudice  of 
natural  persons.  While  such  persons,  as  citizens,  are  the 
source  of  law,  they  are  as  individuals  subject  to  its  pro- 
visions and  constant  changes.  The  State  would  scorn  to 
enter  into  any  contract  for  stability  with  individuals  sub- 
ject to  its  authority.  It  abdicates  for  them  none  of  its 
legislative  powers.  They  must  embark  their  all  in  the 
hope  that  by  future  legislation  the  State  will  not  materially 
change  the  conditions  which  have  induced  their  risk.    They 

*4  Wheaton  (U.  S.  Rep.),  519. 

339 


ESSAYS  AND  ADDRESSES 

can  have  no  other  guaranty  than  that  their  property  shall 
not  be  taken  for  public  purposes  without  just  compensa- 
tion. Beyond  this  they  can  only  hope  for  reasonable 
stabihty. 

The  private  corporation  is  exposed  to  few  such  risks. 
By  the  act  of  its  creation,  usually  a  mere  clerical  function 
of  some  public  official,  the  State  surrenders — perhaps  in 
perpetuity — some  portion  of  its  legislative  power.  B}^ 
every  enactment  providing  for  the  issue  of  corporate  char- 
ters the  legislature  binds  its  successors  to  the  extent  that 
charter  contracts  are  entered  into  under  its  terms.  Thus 
to  the  immunity  of  the  private  corporation  from  inter- 
ruption or  dissolution  by  the  death  of  its  members  the 
contract  clause  of  the  Constitution  as  thus  far  interpreted 
adds  exemption  in  large  measure  from  legislative  control. 
This  tremendous  advantage  might  be  free  from  serious 
objection  had  the  operations  of  the  private  corporation 
been  confined  to  the  field  which  lies  beyond  individual 
effort;  but,  because  of  its  invasion  of  the  domain  of  per- 
sonal enterprise  it  amounts  to  a  discrimination  by  law  in 
favor  of  an  artificial  body  against  the  citizen.  Except  for 
the  obstacle  of  this  constitutional  guaranty  the  State 
would  at  any  time  be  at  liberty  to  impose  such  restrictions 
on  private  corporations  as  the  public  welfare  may  require. 

It  is  true  that  some  States  have  in  recent  years,  by 
provision  of  their  general  incorporation  laws,  expressly 
reserved  the  power  to  modify  or  annul  charters  issued 
by  them;  but  we  have  become  so  accustomed  to  regard 
the  charter  powers  of  private  corporations  as  vested  rights 
that  no  considerable  use  has  yet  been  made  of  the  power 

340 


TRUSTS:   THEIR  LEGAL   STATUS 

to  amend  or  annul  so  reserved  by  the  State.  Its  possibili- 
ties wiU  be  left  for  the  discussion  of  public  authority  to 
impose  restrictions  upon  existing  monopoly  corporations. 

This,  however,  is  not  the  whole  story.  Private  cor- 
porations often  appeal  to  public  authority  for  increased 
powers;  and  some  of  them  require  licenses  to  use  public 
property  and  facilities.  All  grants  of  such  powers  and 
licenses  are  also  held  to  be  "contracts"  between  them  and 
the  State  or  municipality,  which  may  not  be  impaired 
under  the  contract  clause  of  the  Constitution.  To  secure 
them  the  powerful  private  corporation  presses  its  demands 
upon  the  public  authorities  with  persistence  and  usually 
with  success.  Its  defeats  are  but  temporary  checks.  Its 
victories  are  permanent  conquests.  Every  public  grant 
to  it  at  once  becomes  a  vested  contract  whose  obligation 
may  not  be  impaired  even  to  correct  a  public  wrong. 

Thus  it  appears  that  the  private  corporation — a  crea- 
ture of  positive  law  the  sole  justification  of  whose  being 
is  the  public  need — has  been  permitted  to  invade  and 
largely  to  possess  the  field  of  personal  enterprise ;  that  we 
have  all  but  lost  sight  of  the  reason  for  its  being  and 
allowed  its  multipUcation  without  restraint  for  any  and 
every  purpose,  with  no  thought  of  the  public  welfare,  but 
only  of  the  desire  of  its  promoters ;  and  that  we  have  raised 
it  above  the  law,  where  it  may  dispute  even  public  author- 
ity, thereby  giving  it  a  tremendous  advantage  over  in- 
dividual competitors. 

It  seems  all  but  incredible  that  State  governments, 
which  are  merely  representative  of  individuals  possessing 
the  franchise,  almost  all  of  whom  are  engaged  in  industry 

341 


ESSAYS  AND  ADDRESSES 

and  trade,  should  have  permitted  the  private  corporation 
— a  mere  creature  of  law — not  only  to  enter  into  every 
field  of  personal  enterprise,  there  to  compete  on  unequal 
terms  with  the  individual  citizens,  but  to  wage  against 
them  a  war  of  extermination.  It  seems  even  more  incredi- 
ble that  a  government  which  is  itself  but  the  agent  of  free 
men  should  surrender  to  these  impersonal  creatures  of  law 
some  portion  of  its  own  merely  delegated  authority,  thus 
arming  them  with  some  of  the  powers  of  the  State  itself. 
The  situation  calls  for  a  reexamination  of  the  action 
through  which  these  results  have  been  reached.  The  time 
has  come  to  consider  whether  constitutional  guarantees  in- 
tended for  the  protection  of  the  individual  have  not  been 
perverted  to  the  service  of  the  private  corporation.  We 
may  well  inquire  whether  the  State  and  its  creatures  exist 
for  the  service  of  the  citizens  or  to  minister  to  the  monopoly 
corporation, — if  the  welfare  of  all  the  people  shall  give  way 
to  the  personal  interest  of  a  privileged  few.  We  may  rest 
assured  that  the  case  is  not  closed  in  favor  of  vested  rights 
whose  vesting  rests  merely  upon  old  interpretations  of 
general  constitutional  provisions.  We  have  perhaps  come 
to  regard  the  term  "vested  rights"  as  too  inclusive,  and 
made  it  also  to  cover  what  Washington  Gladden  has  well 
characterized  as  "vested  wrongs."  The  question  seems  to 
be  fairly  presented  whether  Mr.  Lincoln's  vision  of  a  gov- 
ernment of  the  people  by  the  people  for  the  people  shall 
give  place  to  a  government  of  the  monopoly  corporation 
by  the  monopoly  corporation  for  the  monopoly  corpora- 
tion's stockholders. 

It  is  not  intended  by  what  has  thus  far  been  said  to 

342 


TRUSTS:   THEIR  LEGAL   STATUS 

prejudge  the  final  issue  between  the  public  and  the  mo- 
nopoly corporation.  It  is,  however,  assumed  that  the  pub- 
lic welfare,  whatever  it  shall  prove  to  be,  is  paramount ;  and 
that  all  other  interests,  however  worthy  or  important,  are 
but  secondary.  We  have  thus  far  but  stated  in  general 
outline  the  relative  positions  of  the  contending  forces. 
This  is  not  the  place  to  discuss  the  economic  questions  in- 
volved between  them,  even  if  the  writer  had  any  peculiar 
qualification  for  such  a  discussion.  It  is  proposed  here  to 
consider  what  may  be  done  about  the  monopoly  corpora- 
tion, leaving  it  for  the  economist  to  say  what  ought  to  be 
done  within  the  limits  of  what  may  be  done. 

The  monopoly  corporation  is  a  development.  Some  be- 
lieve it  to  be  a  natural  growth;  while  others  regard  it  as 
an  abnormal  product  of  our  commercial  and  legal  condi- 
tions. Mr.  Aldace  F.  Walker,  in  his  recent  article  on 
"Anti-Trust  Legislation,"  *  announces  his  conclusion  that 
it  is  the  direct  consequence  of  such  legislation. 

Thus,  in  the  view  of  one  of  our  ablest  and  most  ex- 
perienced observers,  who  believes  that  we  have  placed  too 
much  reliance  on  competition,  and  that  it  is  not  now  the 

*  '*  The  Forum,"  May,  1899,  p.  262,  Mr.  Walker  states  the  situ- 
ation as  he  sees  it  thus : 

' '  Men  have  been  driven  by  some  power  higher  than  the  law  to  find 
a  legal  method  of  accomplishing  a  given  result  which  legislators  have 
endeavored  to  prevent;  the  method  devised  is  one  which  they  would 
have  preferred  not  to  employ ;  its  adoption  has  been  compelled  because 
all  other  methods  were  made  illegal. 

"  What,  then,  is  the  commercial  force  that  has  driven  business  men 
to  this  position  ?  The  answer  is  easy  when  the  subject  is  broadly 
viewed.  Laws  cannot  subdue  the  natural  effort  to  overcome  the 
violence  of  excessive  competition." 

343 


ESSAYS  AND  ADDRESSES 

life  but  the  death  of  trade,  excessive  competition  has  fin- 
ally led  to  excessive  combination. 

It  is  true  that  the  competition  which  it  has  so  long  been 
the  pohcy  of  the  law  to  preserve  as  the  very  life  of  trade 
has  under  modern  conditions  become  a  veritable  war  of 
extermination  between  unequal  forces.  Far  different  were 
the  conditions  from  which  sprang  the  common  law  with  its 
anathema  of  illegahty  against  agreements  for  the  creation 
of  monopolies  and  in  restraint  of  trade.  The  early  cases 
dealt  with  merely  local  competition,  the  competitors  acting 
usually  in  the  same  locality  under  like  conditions  and  upon 
relatively  equal  terms.  Then  followed  the  great  abuse 
known  as  patents  for  monopolies.  This  abuse  culminated 
in  the  reign  of  Elizabeth  in  numerous  grants  of  patents 
for  monopolies  by  the  queen  to  her  servants  and  courtiers, 
who  usually  assigned  them  to  others  and  thus  enabled  them 
to  raise  prices  and  place  almost  incredible  restraints  upon 
industry  and  commerce. 

Queen  Elizabeth's  monopolies  were — due  allowance 
being  made  for  difference  of  conditions — no  mean  rivals 
of  our  monopoly  corporations.  Hers  held  patents  from 
the  Crown ;  ours  hold  charter  contracts  with  the  State.  The 
former  shared  the  royal  prerogative;  the  latter  share  the 
delegated  powers  of  a  democracy. 

The  legality  of  the  patents  for  monopolies  did  not  long 
remain  unquestioned.  In  1562,  in  the  great  case  of  Darcy 
vs.  Allen*  the  court  pronounced  them  void. 

*  1  1  Coke,  84.  In  this  case  the  plaintiff,  who  was  a  groom  of  the 
privy  chamber  to  Queen  EHzabeth,  brought  suit  for  infringement  of 
a  patent  giving  him  "  the  whole  trade,  traffic,   and  merchandise  of  all 

344 


TRUSTS:   THEIR  LEGAL   STATUS 

It  appears  from  the  conclusion  of  the  original  report 
of  this  case  that — 

Our  Lord,  the  king  that  now  is,  in  a  book  which  he, 
in  zeal  to  the  law  and  justice,  commanded  to  be  published 
anno  1610,  entitled  "A  Declaration  of  His  Majesty's 
Pleasures,"  etc,,  p.  13,  has  published,  that  monopolies  are 
things  against  the  laws  of  this  realm;  and  therefore  ex- 
pressly commands  that  no  suitor  presume  to  move  him  to 
grant  any  of  them. 

playing-cards"  and  the  manufacture  thereof  within  this  realm."  It 
was  declared  in  support  of  the  grant  that  the  queen,  intending  that 
her  subjects,  being  able  men  to  exercise  husbandry,  should  apply  them- 
selves thereunto,  and  that  they  should  not  employ  themselves  in  making 
playing-cards,  which  had  not  been  any  ancient  natural  occupation  within 
this  realm,  and  that  by  making  such  a  multitude  of  cards,  card-playing 
was  become  more  frequent,  and  especially  among  servants  and  appren- 
tices and  poor  artificers;  and  to  the  end  that  her  subjects  might  employ 
themselves  to  more  lawful  and  necessary  trades,  by  her  letters  of  patent 
under  the  great  seal,"  granted  to  the  plaintiff  full  power,  license,  and 
authority,  by  himself,  his  servants,  factors,  and  deputies,  to  provide  arid 
buy  in  any  parts  beyond  the  seas  all  such  playing-cards  as  he  thought 
good,  and  to  import  them  into  this  realm;  "  and  also  to  have  the  exclu- 
sive right  of  manufacture  and  trade  as  above  stated. 

The  court,  however,  waived  the  opportunity  to  strike  a  blow  at  ex- 
cessive card-playing  and  declared  the  grant  void  for  these  reasons: 

(1)  All  trades,  as  well  mechanical  as  others,  which  prevent  idleness 
(the  bane  of  the  Commonwealth)  and  exercise  men  and  youth  in  labor  for 
the  maintenance  of  themselves  and  their  families  and  for  the  increase  of 
their  substance,  to  serve  the  queen  when  occasion  shall  require,  are 
profitable  for  the  Commonwealth;  and  therefore  the  grant  to  the 
plaintiff  to  have  the  sole  making  of  them  is  against  the  common  law, 
and  the  benefit  and  liberty  of  the  subject. 

(2)  The  sole  trade  of  any  mechanical  artifice  or  any  other  monopoly 
is  not  only  a  damage  and  prejudice  to  those  who  exercise  the  same 
trade,  but  also  to  all  other  subjects;  for  the  end  of  all  these  monopolies 
is  for  the  private  gain  of  the  patentees. 

(3)  The  queen  was  deceived  in  her  grant;  for  the  queen,  as  by  the 
preamble  appears,  intended  it  to  be  for  the  weal  public,  and  it  will  be 

345 


ESSAYS  AND  ADDRESSES 

A  few  years  later,  in  1623,  in  order  to  deliver  the  Crown, 
as  well  as  suitors  for  patents,  from  all  further  temptation 
in  this  direction.  Parliament,  by  statute  against  "monopo- 
lies," provided  in  part  as  follows : 

That  all  monopolies,  and  all  commissions,  grants, 
licenses,  charters,  and  letters  patents  heretofore  made  or 
granted,  or  hereafter  to  be  made  or  granted,  to  any  per- 
son or  persons,  bodies  politic  or  corporate  whatsoever,  of 
or  for  the  sole  buying,  selling,  making,  working,  or  using 
of  anything  within  this  realm,  or  the  dominion  of  Wales, 
or  of  any  other  monopolies,  or  of  power,  liberty,  or  faculty 
to  dispense  with  any  others,  ...  are  altogether  con- 
trary to  the  laws  of  this  realm,  and  so  are  and  shall  be 
utterly  void  and  of  none  effect  and  in  no  wise  to  be  put  in 
use  or  execution. 

Parliament  had,  by  statute  of  5  and  6  Edward  VI, 
prohibited   "engrossing."*    The  purpose  of  the  statute 

employed  for  the  private  gain  of  the  patentee,  and  for  the  prejudice  of 
the  weal  public. 

(4)  This  grant  is  primcB  impressionis,  for  no  such  was  ever  seen 
to  pass  by  letters  patents  under  the  great  seal  before  these  days,  and 
therefore  it  is  a  dangerous  innovation,  as  well  without  any  precedent  or 
example  as  without  authority  of  law  or  reason." 

The  court  went  on  to  say  that  monopolies  have,  as  inseparable 
incidents,  the  following: 

(a)  That  the  price  of  the  same  commodity  will  be  raised;  for  he 
who  has  the  sole  selling  of  any  commodity  may  and  will  make  the  price 
as  he  pleases,  (b)  That  after  the  monopoly  granted,  the  commodity  is 
not  so  good  and  merchantable  as  it  was  before ;  for  the  patentee,  having 
the  sole  trade,  regards  only  his  private  benefit,  and  not  the  common- 
wealth, (c)  It  tends  to  the  impoverishment  of  divers  artificers  and 
others,  who  before  by  the  labor  of  their  hands  in  their  art  or  trade  had 
maintained  themselves  and  their  families,  who  now  will  of  necessitj'  be 
constrained  to  live  in  idleness  and  beggary. 

To      engross"   was  to  get  possession  or  control,  by  buying,  con- 
tracting,   or   promise-taking,  of   the    whole   or    a    considerable    portion 

346 


TRUSTS:   THEIR  LEGAL   STATUS 

was  to  do  away  with  middlemen,  on  the  assumption  that 
they  enhanced  the  price  of  the  necessaries  of  Hfe.  By  the 
same  act  the  similar  offences  of  "forestalling"  and  "xe- 
grating"  were  made  penal.* 

Under  these  and  subsequent  statutes  the  line  between 
what  was  legal  and  what  was  criminal  became  exceedingly 
vague  and  uncertain.  The  fear  of  combinations  to  in- 
crease prices  led  to  the  enactment  of  hundreds  of  general 
and  special  statutes.  The  statute  of  George  I,  known  as 
the  Bubble  Act,  made  it  a  crime,  punishable  with  death 
and  confiscation  of  goods,  to  form  voluntary  associations 
and  issue  transferable  shares  therein.  By  statute  of  17 
George  III,  combinations  by  partnership  or  otherwise  for 
the  purchase  or  sale  of  brick  were  declared  illegal;  and 
by  that  of  28  George  III  it  was  made  unlawful  for  five 
or  more  persons  to  unite  in  covenant  or  partnership  to  buy 
coals  for  sale.  Similar  statutes  made  criminal  all  kinds 
of  associations  of  business  and  working  men,  on  the  theory 
that  by  association  prices  and  wages  would  be  increased 
and  the  industry  of  individuals  injured.  Had  it  been  pos- 
sible strictly  to  enforce  these  acts,  middlemen  would  have 
been  suppressed  and  all  association  of  effort  and  capital 
destroyed.  The  failure  of  legislation  of  this  character  to 
take  "good  effect"  is  confessed  in  the  preamble  to  the  act 
of  5  and  6  Edward  VI,  in  these  words : 

Albeit  divers  good  statutes  heretofore  have  been  made 
against  forestallers  of  merchandise  and  victuals,  yet  for 

of  any  necessary  of  life  in  the  nature  of  provisions,  with  intent  to  resell 
in  the  same  form. 

*This  act  has  been  repealed. 

347 


ESSAYS  AND  ADDRESSES 

that  good  laws  and  statutes  against  regrators  and  ingross- 
ers  of  the  same  things  have  not  been  heretofore  sufficiently 
made  and  provided,  and  also  for  that  it  hath  not  been  per- 
fectly known  what  person  should  be  taken  for  a  fore- 
staller,  regrator,  or  ingrosser,  the  said  statutes  have  not 
taken  good  effect,  according  to  the  minds  of  the  makers 
thereof. 

The  public  policy  which  it  was  sought  to  express  by 
these  enactments  was  then,  and  still  remains,  difficult  of 
exact  definition.  From  that  day  to  this  the  limits  of  com- 
bination and  the  extent  of  business  enterprise  under  a 
single  management  within  the  line  of  legality  have  de- 
pended on  the  individual  views  of  public  policy  held  by 
the  judges.  In  early  days  it  was  held  illegal  to  contract 
for  258  acres  out  of  30,000  acres  of  growing  hops.  The 
purchase  of  8,000  bushels  of  corn,  of  3,200  bushels  of 
wheat,  of  1,600  bushels  of  oats,  of  672  pounds  of  butter, 
of  18,432  pounds  of  cheese,  of  100  bushels  of  salt,  of  "a 
great  number  of  wild  fowle,"  and  of  "a  great  quantity  of 
straw  and  hay,"  were  held  by  the  courts  to  be  violations 
of  the  statutes.  From  these  early  judgments,  affecting 
small  and  usually  local  transactions,  there  is  a  long  line 
of  decisions  against  acts  held  to  be  in  contravention  of 
public  policy.  While  the  courts  have  never  been  able  to 
fix  the  limits  of  public  policy,  and  while  complaint  is  some- 
times made  of  the  supposed  increasing  frequency  with 
which  they  resort  to  it  as  authority  for  refusing  to  give 
effect  to  contracts,  the  rule  is  finally  fixed  that  undertak- 
ings which  have  a  tendency  to  be  or  are  clearly  injurious 
to  the  public  shall  be  held  void  and  refused  the  sanction  of 
the  courts.     The  element  of  public  policy  in  the  law  of 

348 


TRUSTS:   THEIR  LEGAL   STATUS 

contracts  has  its  origin  in  the  very  sources  of  the  common 
law. 

The  rule  of  public  policy  upon  which  rests  the  numerous 
decisions  in  both  England  and  America  pronouncing 
illegal  or  criminal  combinations  and  agreements  for  mo- 
nopolies or  in  restraint  of  trade  is  of  necessity  a  flexible 
and  changing  rule  of  decision.  In  the  words  of  Lord  St. 
Leonards,  "It  has  been  restrained  and  limited  and  qualified 
up  to  this  very  hour."  The  purchase  of  a  few  thousand 
bushels  of  grain,  a  few  hundred  pounds  of  butter,  or  even 
"a  great  quantity  of  straw  and  hay,"  is  no  longer  illegal 
anywhere.  Free  trade,  even  in  the  necessaries  of  life,  has 
been  found  conducive  to  lower  rather  than  higher  prices. 
But,  both  by  legislation  and  judicial  decisions  in  the  United 
States,  the  attempt  is  still  strenuously  made  to  place  limits 
upon  combinations  to  monopolize  industry  and  trade. 

The  tendency  in  England  has  long  been  toward  greater 
toleration  of  combinations  for  business  purposes.  Cor- 
porations and  joint-stock  companies,  organized  to  conduct 
business  on  a  large  scale,  are  now  regarded  as  legitimate 
enterprises.  Many  of  the  old  statutes  in  regard  to  trade 
have  been  repealed. 

The  recent  case  of  Mogul  Steamship  Company  vs.  Mc- 
Gregor* is  regarded  as  a  departure  from  the  earlier 
authorities  and  in  favor  of  a  greater  toleration  of  com- 
binations to  monopolize  industry  and  trade.  The  defend- 
ants, who  were  firms  of  shipowners  engaged  in  the  China 
trade,  formed  themselves  into  an  association  to  control 
the  trade  and  maintain  rates.     The  plaintiffs,  being  ship- 

*L.  R.  23  Q.  B.  D.  598;   [l892]  App.  Cas.  25. 

349 


ESSAYS  AND  ADDRESSES 

owners  engaged  in  the  same  trade,  were  excluded  from 
the  association.  The  court  held  that  the  association  was 
not  illegal,  although  it  appeared  that  it  gave  rebates  to 
merchants  who  dealt  exclusively  with  its  members,  sent 
ships  to  compete  with  plaintiffs'  ships,  temporarily  low- 
ered freights,  indemnified  others  to  compete  with  plaintiffs, 
and  dismissed  agents  who  had  acted  for  both  parties.  As 
was  said  by  the  court:  "The  means  adopted  were  competi- 
tion carried  to  the  bitter  end."  Lord  Morris,  on  the  hear- 
ing in  the  House  of  Lords,  said : 

What  one  trader  may  do  in  respect  of  competition, 
a  body  or  set  of  traders  can  lawfully  do ;  otherwise  a  large 
capitalist  could  do  what  a  number  of  smaller  capitalists, 
combining  together,  could  not  do,  and  thus  a  blow  would 
be  struck  at  the  very  principle  of  cooperation  and  joint- 
stock  enterprises.  I  entertain  no  doubt  that  a  body  of 
traders  whose  motive  object  is  to  promote  their  own  trade 
can  combine  to  acquire,  and  thereby  in  so  far  to  injure  the 
trade  of  competitors,  provided  they  do  no  more  than  is 
incident  to  such  motive  object  and  use  no  unlawful  means. 

This  great  case  has  settled  the  law  of  England  and 
made  it  there  "perfectly  legitimate  to  combine  capital  for 
all  the  mere  purposes  of  trade  for  which  capital  may,  apart 
from  combination,  be  legitimately  used."  Fry,  J.,  pro- 
nounces the  repeal  of  the  early  statutes  against  engrossing 
and  regrating  "a  confession  of  failure  in  the  past,  the 
indication  of  a  new  policy  for  the  future"  ;  and  adds: 

Thus  the  stream  of  modern  legislation  runs  strongly 
in  favor  of  allowing  great  combinations  of  persons  inter- 
ested in  trade,  and  intended  to  govern  or  regulate  the 
proceedings  of  large  bodies  of  men,  and  thus  necessarily  to 
interfere  with  what  would  have  been  the  course  of  traffic 
if  unaffected  by  such  combinations." 

350 


TRUSTS:   THEIR  LEGAL   STATUS 

The  legal  pathway  of  the  monopoly  combination  has 
not  been  made  so  straight  and  plain  in  America  as  it  thus 
appears  to  be  in  England.  In  our  several  jurisdictions, 
Federal  and  State,  by  the  common  law  and  numerous 
statutes  we  still  seek  to  suppress  monopolies  and  con- 
spiracies in  restraint  of  trade.  The  courts,  when  called 
upon,  have  pronounced  invalid  all  combinations  that  would 
have  been  illegal  at  common  law.  Trusts,  associations, 
and  agreements  have  been  declared  void  in  almost  every 
jurisdiction.  The  results  have  not  been  satisfactory. 
Great  enterprises  have  been  conducted  in  defiance  of  law. 
Adverse  decisions  have  usually  led  to  evasions,  and  often 
to  the  formation  of  monopoly  corporations.  With  deci- 
sions and  statutes  in  endless  profusion  and  hopeless  con- 
fusion, the  trust  has  flourished  here  as  nowhere  else  in 
the  world.  It  is  probably  true  that  the  rapid  multiplica- 
tion of  monopoly  corporations  is  due,  not  so  much  to  the 
desire  of  their  promoters  to  obey  the  law  as  to  their  efforts 
to  evade  it  by  bringing  their  enterprises  ^\ithin  its  terms 
in  utter  disregard  of  its  spirit. 

Reference  to  a  few  American  cases  will  illustrate  the 
attitude  of  our  courts  toward  these  combinations  and  show 
how  radically  it  differs  from  that  of  the  English  courts. 
In  State  vs.  Standard  Oil  Company*  the  Supreme  Court 
of  Ohio  held  that  an  agreement  by  which  all  or  a  majority 
of  the  stockholders  of  a  corporation  transferred  their 
stock  to  trustees  in  consideration  of  agreements  by  the 
stockholders  of  other  similai*  corporations  to  do  the  same, 
all  receiving  trust  certificates  to  represent  their  transferred 

*49  Ohio  St.  138. 

351 


ESSAYS  AND  ADDRESSES 

stock  and  entitle  them  to  draw  the  dividends  on  such  stock, 
tended  to  create  a  monopoly  and  control  prices,  and  was 
void  as  against  public  policy. 

The  Supreme  Court  of  Illinois,  in  People  vs.  Chicago 
Gas  Trust  Co.*  held  that  a  corporation  organized  for  the 
maufacture  and  sale  of  gas  and  "to  purchase  and  hold  or 
sell  the  capital  stock"  and  works  of  other  gas  companies 
did  not  have  power  to  acquire  and  hold  the  stock  of  the 
existing  gas  companies  of  Chicago,  the  provision  in  its 
charter  being  void  because  against  public  policy  at  com- 
mon law. 

The  Supreme  Court  of  Illinois  also  held,  in  Distilling 
and  Cattle  Feeding  Co.  vs.  Peopled  that  a  corporation, 
to  succeed  a  trust,  in  fact  organized  by  the  trustees  of  the 
stockholders  of  several  corporations  to  acquire  the  prop- 
erties of  such  corporations,  was  illegal  because  repugnant 
to  public  policy,  just  as  the  trust  itself  had  been.  The 
court  said: 

There  is  no  magic  in  a  corporate  organization  which 
can  purge  the  trust  scheme  of  its  illegality,  and  it  remains 
as  essentially  opposed  to  the  principles  of  sound  policy 
as  when  the  trust  was  in  existence.  It  was  illegal  before, 
and  it  is  illegal  still,  and  for  the  same  reasons. 

The  Supreme  Court  of  the  United  States,  in  United 
States  vs.  Trans- Missouri  Freight  Association  A  held  that 
under  the  Act  of  Congress  of  July  2,  1890,  entitled:  "An 
Act  to  Protect  Trade  and  Commerce  against  Unlawful 
Restraints  and  Monopolies,"  all  contracts  in  restraint  of 
trade  or  commerce  among  the  several  States  or  with  for- 

*130  111.  iJ68.  t  156  111.  448,  490.  t  1  66  U.  S.  290. 

352 


TRUSTS:   THEIR  LEGAL   STATUS 

eign  nations  are  void,  whether  in  the  form  of  trusts  or 
otherwise,  and  without  regard  to  their  reasonableness  or 
whether  they  would  have  been  unlawful  at  common  law. 
Under  this  interpretation  of  the  act  an  agreement  between 
railroad  companies,  "for  the  purpose  of  mutual  protection 
by  establishing  and  maintaining  reasonable  rates,  rules, 
and  regulations,"  was  pronounced  invalid. 

Many  of  the  States  have  enacted  drastic  legislation  for 
the  suppression  of  trusts,  the  tendency  being  to  increase 
the  stringency  of  such  legislation.  A  number  of  these 
statutes  declare  that — 

all  arrangements,  contracts,  agreements,  trusts,  or  com- 
binations made  with  a  view  to  lessen,  or  which  tend  to 
lessen,  free  competition  in  the  importation  or  sale  of 
articles  imported  into  this  State,  ...  in  the  manu- 
facture or  sale  of  articles  of  domestic  growth  or  of  domestic 
raw  material  [are]  against  public  policy,  unlawful,  and 
void. 

They  proceed  to  provide  for  the  forfeiture  of  the  char- 
ters of  domestic  corporations  which  shall  violate  their 
provisions,  for  the  exclusion  from  the  State  of  foreign 
corporations  (including  those  of  other  States)  for  their 
violation,  and  for  the  punishment  by  fine  or  imprisonment 
of  the  officers  and  agents  of  such  offending  corporations 
for  conspiracy.  They  also  give  persons  injured  by  such 
combinations  a  right  of  action  for  damages.  Such  in 
substance  are  the  anti-trust  statutes  of  Arkansas  and 
Indiana.  In  Illinois  and  Missouri  it  is  further  provided 
that  no  corporation  may  issue  or  own  trust  certificates,  or 
be  controlled  by  any  trustee  or  trustees,  with  intent  to 
limit  or  fix  the  price  or  lessen  the  output  of  any  article  of 

353 


ESSAYS  AND  ADDRESSES 

commerce.  In  New  York  every  contract,  arrangement, 
or  combination,  whereby  a  monopoly  in  the  manufacture  or 
sale  of  "any  article  or  commodity  of  common  use  is  or  may 
be  created,  established,  or  maintained,"  or  whereby  com- 
petition is  or  may  be  restrained  or  prevented,  or  whereby, 
for  the  purpose  of  creating  or  maintaining  such  monopoly, 
the  free  pursuit  of  any  lawful  business,  trade,  or  occupation 
is  or  may  be  restricted  or  prevented,  is  declared  to  be 
"against  public  policy,  illegal,  and  void." 

The  foregoing  illustrations  from  the  judicial  decisions 
and  legislation  of  the  country  may  serve  to  indicate  the 
extreme  hostility  of  American  law  to  all  combinations  to 
suppress  free  competition.  The  question  naturally  arises, 
Why  do  these  combinations  flourish  here,  as  nowhere  else, 
in  the  face  of  this  hostility?  The  answer  to  this  inquiry  is 
not  obvious,  but  complex.  The  public  policy  of  the  coun- 
try on  this  subject  must  be  sought  in  the  entire  body  of  its 
judicial  decisions  and  the  legislation  affecting  it.  The 
truth  is  that  the  public  policy  which  finds  such  abundant 
expression  in  anti-ti-ust  decisions  and  legislation  is  in  direct 
conflict  with  the  public  opinion  expressed  in  the  loose  in- 
corporation laws  of  the  various  States,  the  contract  clause 
of  the  Constitution,  and  the  protective  duties  levied  on 
imported  goods.  We  have  already  noted  the  bearing  of 
the  first  two  of  these  on  the  trust  problem.  The  tariff 
is  even  more  important.  While  Mr.  Havemeyer  may 
exaggerate  in  pronouncing  the  tariff  "the  mother  of  all 
trusts,"  it  is  beyond  all  question  the  efficient  wet-nurse 
of  most  of  them.  It  would  be  strange  indeed  if  domestic 
combinations  to  control  the  production  and  selling  price 

354 


TRUSTS:   THEIR  LEGAL   STATUS 

of  commodities  should  not  be  directly  aided  by  laws  im- 
posing duties  averaging  some  fifty  per  cent  ad  valorem  on 
competing  importations.  Mr.  Havemeyer,  from  his  point 
of  view,  has  good  ground  to  criticise  those  who  object  to 
combinations  of  domestic  producers  to  secure  the  enhanced 
prices  which  Congress — in  what  we  are  pleased  to  regard 
its  wisdom — has  by  its  tariff  bills  adjudged  to  be  simply 
their  due.  The  statutes  of  every  State  under  which  any 
three  or  more  persons  may  organize  a  corporation  of  any 
size  for  any  purpose,  the  general  interpretation  of  the 
contract  clause  of  the  Constitution  by  which  corporations 
are  given  a  special  stability,  and  the  tariff  laws  by  which 
American  producers  are  authorized  by  law  to  charge  fancy 
prices  for  their  products,  are  to  be  regarded  as  expressions 
of  public  policy  as  truly  as  are  the  laws  against  trusts. 
To  the  fact  that  these  public  policies  are  in  direct  conflict 
is  mainly  due  the  failure  of  our  anti-trust  laws.  We  have, 
by  laws  which  continue  in  America  a  public  policy  as  old 
as  special  privilege,  raised  up  powerful  combinations  of 
capital  which  have  thus  far  made  naught  of  the  conflicting 
public  policy  which  finds  expression  in  the  anti-trust  legis- 
lation and  decisions,  and  which  seeks  to  protect  the  rights 
of  an  entire  people.  This  is  but  the  modern  form  of  the 
old  conflict  between  special  privilege  and  equal  oppor- 
tunity. 

The  splendid  prizes  which  our  tariff  legislation  has 
placed  within  the  grasp  of  successful  combination  in  almost 
every  field  of  industry  and  trade,  with  the  way  made  plain 
and  easy  to  stable  incorporation,  has  led  everywhere  to 
the  successful  evasion  of  even  the  most  stringent  anti- 

355 


ESSAYS  AND  ADDRESSES 

trust  laws.  The  great  decisions  of  our  courts  pronouncing 
trusts  and  combinations  illegal  have  only  accelerated  their 
progress  to  the  goal  of  monopoly  incorporation. 

The  mighty  trusts  of  to-day  are,  almost  without  ex- 
ception, simple  stock  corporations  which  directly  own 
former  competing  plants.  Their  inflated  capital  stocks  are 
listed  on  the  exchanges  and  have  there  become  part  and 
parcel  of  the  speculative  securities  of  the  day.  Enterprises 
of  enormous  moment  to  the  people  have  thus,  in  evasion 
of  the  law,  fallen  into  the  hands  of  adventurers.  In  some 
cases  they  will  be  managed  so  as  to  earn  dividends;  in 
others,  those  in  control  will  find  their  advantage  in  stock 
manipulations.  We  have  already  had  a  foretaste  of  the 
possibilities  of  insolvencies,  receiverships,  and  reorganiza- 
tions. In  view  of  the  fact  that  no  rights  are  so  unprotected 
by  law  as  those  of  minority  stockholders  of  corporations, 
the  great  increase  of  such  securities  is  not  a  pleasing 
incident  of  this  development. 

The  anti-trust  laws  having  been  evaded  by  the  pro- 
moters of  the  monopoly  corporation,  the  trust  in  this  final 
form  stands  in  open  violation  of  the  spirit  of  the  law  free 
from  the  charge  of  technical  illegality.  Unless  the  prin- 
ciple of  the  decision  of  the  Supreme  Court  of  Ilhnois  in 
Distilling  and  Cattle  Feeding  Co.  vs.  People*  above 
noted,  is  to  receive  wide  application,  the  monopoly  cor- 
poration seems  for  the  present  secure.  It  may  be  excluded 
from  other  States  by  further  hostile  legislation,  but  even 
this  remedy  has  its  limitations  in  the  commerce  clause  of 
the  Constitution.     It  was  the  purpose  of  that  clause  to 

*  156  111.  448,  490. 

356 


TRUSTS:   THEIR  LEGAL   STATUS 

secure  absolute  free  trade  among  the  States ;  and  the  courts 
will  probably  not  permit  serious  interference  with  inter- 
state traffic  in  commodities,*  even  though  produced  by 
monopoly  corporations.  The  difficulties  of  the  problem 
are  much  increased  by  our  numerous  jurisdictions.  It 
is  by  no  means  probable  that  uniform  State  legislation 
can  be  secured  on  this  subject.  It  is  clear,  however,  that 
corporations  engaged  in  interstate  commerce  are  subject 
to  the  control  of  Congress. t  The  act  of  Congress  of  July 
2,  1890,  may  be  followed  by  further  legislation,  as  its  dec- 
laration that  "every  contract,  combination  in  the  form 
of  trust  or  otherwise,  or  conspiracy,  in  restraint  of  trade 
or  commerce  among  the  several  States  or  with  foreign 
nations,"  is  illegal,  can  hardly  be  made  to  cover  the  com- 
pact monopoly  corporation. 

These  special  difficulties  aside,  some  vital  questions  on 
the  merits  remain.  What  limitations  are  we  prepared  to 
impose  on  combination  by  way  of  incorporation?  Are  we 
ready  to  limit  the  kinds  of  business  in  which  corporations 
may  engage?  May  we  confine  a  corporation  to  a  given 
territory,  or  place  a  limitation  on  the  amount  of  its  busi- 
ness? Is  there  some  standard  of  "fairness"  or  "reason- 
ableness" that  may  be  imposed  for  the  regulation  of  com- 
petition? In  order  to  steer  our  course  between  the  Scylla 
of  competition  and  the  Charybdis  of  monopoly,  shall  we 
by  law  impose  terms  upon  industry  and  fix  prices  for  its 

*  Cooper  Mfg.  Co.  vs.  Ferguson,  113  U,  S.  727;  Robbing  vs.  Shelby 
Taxing  District,  120  U.  S.  489;  Minnesota  vs.  Barber,  136  U.  S.  313; 
Breman  vs.  Titusville,  153  U.  S.  289. 

t  United  States  vs.  Trans-Missouri  Freight  Association,  166  U.  S. 
290. 

357 


ESSAYS  AND  ADDRESSES 

products?  The  answers  to  these  inquiries  do  not  lie  within 
the  purpose  of  this  paper.  They  must  finally  be  given 
by  the  economist  and  the  legislator.  Suffice  it  here  to  say 
that  corporations  can  never  be  above  the  law.  As  its 
creatures  they  must  remain  subject  to  the  law.  That  they 
are  beyond  public  control  cannot  be  conceded.  Whatever 
limitations  upon  their  powers  or  activities  the  public  wel- 
fare requires,  must  be  imposed.  Resort  must  be  had  to 
charter  reservations  of  control  where  they  exist.  Neither 
constitutional  construction  nor  established  practice,  how- 
ever venerable  or  sustained  by  authority,  must  be  permitted 
to  interfere  with  their  control,  or  even  with  their  sup- 
pression, if  called  for  by  the  public  welfare.  In  our  regard 
for  private  rights  we  must  not  perpetuate  public  wrongs. 
In  order  to  guard  vested  rights  we  must  not  protect  vested 
wrongs.  The  commonwealth  is  greater  than  the  corpora- 
tion of  its  creation.  The  Constitution  has  made  trade  free 
within  the  United  States.  It  must  not  be  so  interpreted 
as  to  make  monopoly  supreme  throughout  a  land  ded- 
icated to  freedom. 

The  choice  does  not  lie,  as  some  believe,  between  excess- 
ive competition  and  uncontrolled  monopoly.  It  is  not  a 
question  whether  we  shall  have  combination;  but,  having 
it,  whether  the  few  or  all  shall  enjoy  its  benefits.  We  can- 
not go  back  to  a  condition  of  competition  mainly  local  and 
upon  equal  terms.  We  have  tasted  the  tremendous  ad- 
vantages of  combination  with  freedom  from  destructive 
competition.  Such  advantages,  once  realized,  are  never 
surrendered.  The  problem  for  solution  is  how  to  se- 
cure them  for  all.     It  is  the  purpose  of  the  trust  to 

358 


TRUSTS:   THEIR  LEGAL   STATUS 

seize  them  for  the  few.  The  struggle  is  always  and  every- 
where between  equal  opportunity  and  special  privilege. 
In  such  a  contest  the  State,  which  is  but  their  representa- 
tive, must  stand  for  all  against  some.  To  whatever  extent 
the  public  good  requires,  the  monopoly  operation  must 
yield  to  public  control. 


359 


"THE    CONFUSED    WEST":   A   LITERARY 
FORECAST  * 

r>ARRETT  WENDELL,  of  Harvard  University, 
devotes  a  chapter  of  fourteen  pages  in  his  recent 
"Literary  History  of  America"  to  "The  West,"  the  vast 
region  lying  westward  from  the  Alleghany  Mountains. 
The  significance  of  these  pages  lies  in  their  disclosure  of 
how  the  West  appears  to  an  observer  from  the  point  of 
view  of  our  oldest  seat  of  learning.  This  Professor 
Wendell  expresses  in  a  single  phrase — "The  Confused 
West" — which  he  coins  and  again  and  again  repeats. 
We  who  are  of  it  and  know  it,  while  bound  to  admit  that 
the  West  has  not  yet  achieved  an  adequate  literary  expres- 
sion, do  not  concede  all  that  these  words  imply. 

The  literature  that  shall  make  lasting  record  of  the 
discovery  and  settlement  of  the  Mississippi  Valley,  that 
shall  finally  express  the  life  and  purpose  of  the  chosen 
millions  who  have  entered  into  it  as  an  inheritance,  is  but 
begun.  Two  generations  of  pioneers  occupied  its  vast 
area  and  planted  throughout  its  length  and  breadth  the 
institutions  of  freedom.  A  third  generation,  the  first  of 
native  birth,  inherited  and  now  enjoys  both  land  and  insti- 
tutions. Under  these  conditions  we  may  well  inquire 
whether  there  is  not  just  at  hand  a  great  literary  epoch  in 
which  the  true  meaning  of  this   western  life  shall  find 

*  Inaugural  address  as  President  of  the  Chicago  Literary  Club, 
October  7,  1901. 

360 


"THE  CONFUSED  WEST" 

adequate  and  lasting  expression?  This  must  be  so  unless 
the  life  of  this  great  valley  is  to  remain  voiceless.  Emer- 
son, on  the  eve  of  the  literary  development  of  New  Eng- 
land, said:  "I  look  for  the  hour  when  that  supreme  Beauty 
which  ravished  the  souls  of  those  Eastern  men,  and  chiefly 
of  those  Hebrews,  and  through  their  lips  spoke  oracles  to 
all  time,  shall  speak  in  the  West  also."  May  we  not  look 
for  the  hour  when  "that  supreme  Beauty"  shall  speak  in 
our  "West"  also? 

What  materials  lie  ready  to  the  hand  of  those  who  shall 
voice  the  life,  the  ideals,  the  aspirations  of  the  West? 
What  are  the  signs  that  they  who  are  to  weld  these  mate- 
rials into  a  living  literature  of  the  soil  are  even  now  at 
the  door? 

There  is  no  fairer  land  than  the  great  region  which  is 
bounded  on  the  north  by  the  greatest  of  inland  seas,  on 
the  east  by  the  Alleghanies,  on  the  south  by  the  great 
gulf,  and  on  the  west  by  the  Sierras.  Within  its  mighty 
natural  boundaries  lies  some  of  the  most  sublime  scenery 
in  the  world.  Here  nature  has  lavished  mountain  and 
plain,  forest  and  prairie,  lake  and  river,  in  endless  prodi- 
gality. Its  natural  resources,  untold  in  extent,  are  almost 
as  varied  as  are  the  wants  of  man.  Its  climate,  ranging 
from  temperate  to  semi-tropic,  leaves  nothing  to  desire. 
Heaven,  having  showered  upon  this  land  her  choicest  gifts, 
held  it  in  reserve  for  a  civilization  worthy  of  such  a  home. 

There  is  nothing  that  so  impresses  foreign  students  of 
American  life  as  its  newness.  Dean  Stanley,  on  returning 
from  a  visit  here,  said:  "America  is  a  land  that  still 
breathes  the  freshness  of  its  first  beginnings."    Professor 

361 


ESSAYS  AND  ADDRESSES 

John  Nichol,  writing  of  us,  says :  "Orphaned  of  the  solemn 
inspirations  of  antiquity,  they  gain  in  surface  what  they 
have  lost  in  age ;  in  hope  what  they  have  lost  in  memory. 
.  .  .  They  have  the  arena  and  the  expectations  of  a 
continent  to  set  against  the  culture  and  the  ancestral 
voices  of  a  thousand  years."  This  is  true,  but  it  is  not 
all  the  truth.  Behind  the  newness  of  American  civilization 
hes  the  universal  mystery  of  prehistoric  life.  We  may 
study  every  detail  of  American  discovery  and  occupation. 
We  can  witness  the  tragic  end  of  what  went  before.  Else- 
where, only  by  the  comparative  study  of  institutions  have 
the  scholars  of  our  time  been  able  to  throw  even  a  dim 
light  back  into  the  remote  past  to  gain  uncertain  glimpses 
of  primitive  life.  Here,  as  John  Fiske  has  pointed  out, 
our  fathers  met  and  studied  a  stage  of  evolution  through 
which  civilized  men  long  ago  passed,  "far  more  ancient 
and  primitive  than  that  which  is  depicted  in  the  Odyssey 
or  in  the  Book  of  Genesis.  When  Champlain  and  Fron- 
tenac  met  the  feathered  chieftains  of  the  St.  Lawrence, 
they  talked  with  men  of  the  Stone  Age  face  to  face. 
Phases  of  life  that  had  vanished  from  Europe  long  before 
Rome  was  built  survived  in  America  long  enough  to  be 
seen  and  studied  by  modern  men."  Nowhere  else  have 
they  come  into  "such  close  and  familiar  contact  with  human 
life  in  such  ancient  stages  of  its  progress."  Yet  a  little 
further  back  is  the  unrent  veil  of  prehistoric  mystery. 

The  continuance  here  almost  to  our  time  of  a  primitive 
society,  the  origin  and  earlier  stages  of  which  are  shrouded 
in  a  mystery  even  more  impenetrable  than  that  of  the  age 
of  fable  in  which  begins  the  history  of  every  European 

362 


"THE  CONFUSED  WEST" 

state,  gives  to  American  life  a  dramatic  setting  of  peculiar 
charm.  That  this  primitive  society  was  forever  cut  oflF 
from  its  goal  when  overwhelmed  by  advancing  civilization 
lends  to  the  wondrous  story  of  American  occupation  a 
tragic  fascination. 

The  parts  of  this  story  which  tell  of  the  settlement  of 
the  eastern  slopes  of  the  AUeghanies  have  supplied  themes 
for  the  hterature  of  the  Atlantic  States.  Their  best  writers 
have  thrown  over  every  historic  spot  from  Maine  to  the 
Carolinas  the  charm  of  imperishable  literature.  The 
development  of  a  great  national  life  has  given  to  the 
smallest  incidents  of  its  origin  a  lasting  significance.  From 
our  point  of  view  Governor  Bradford  and  William  Penn 
were  great  statesmen,  John  Smith  and  Miles  Standish  rare 
soldiers,  the  Pequot  and  King  Philip's  Wars  glorious 
achievements.  Yet  petty  were  the  movements,  the  con- 
flicts, even  the  hardships,  of  the  pioneers  of  the  Atlantic 
States  in  comparison  with  those  of  the  men  who  discovered 
the  West  and  won  it  to  civilization.  As  King  Philip's  War 
is  to  Pontiac's  conspiracy,  as  John  Smith's  travels  in  Vir- 
ginia are  to  the  explorations  of  La  Salle,  as  the  narrow 
limits  of  the  Eastern  settlements  are  to  the  wide  reaches 
of  Western  exploration  and  occupation,  so  is  the  story  of 
pioneer  life  on  the  Atlantic  seaboard  to  the  story  of  pioneer 
life  in  the  mighty  West.  While  aristocratic  Frenchmen 
were  exploring  the  valleys  of  the  St.  Lawrence  and  the 
Mississippi,  democratic  Englishmen  were  slowly  laying 
the  foundations  of  free  institutions  in  the  East.  It  re- 
quired a  full  century  and  a  half  to  create  on  the  Eastern 
slopes  of  the  AUeghanies  a  base  for  the  mighty  movement, 

363 


ESSAYS  AND  ADDRESSES 

which  within  two  generations  after  the  War  for  Inde- 
pendence was  to  plant  throughout  the  Mississippi  Valley 
free  institutions.  To-day  the  East  is  but  the  threshold 
of  the  continent ;  the  Middle  West  is  the  citadel  of  its  life. 
The  experiences  of  the  men  who  made  the  original  States 
and  created  the  nation  fitted  them  to  be  the  progenitors 
of  sons  who,  reinforced  by  the  choicest  elements  of  our 
immigration,  were  to  win  the  West  and  make  it  the  decisive 
factor  in  saving  the  Union. 

The  capture  of  Quebec  marks  the  climax  of  what  Mr. 
Fiske  aptly  calls  "the  struggle  between  the  machine-like 
socialistic  despotism  of  New  France  and  the  free  and  spon- 
taneous political  vitality  of  New  England."  The  victory 
of  Wolfe  "determined  which  kind  of  political  seed  should 
be  sown  all  over  the  widest  and  richest  political  garden- 
plot  left  untilled  in  the  world."  The  task  of  the  men  who 
were  to  sow  this  seed  was  as  vast  in  its  proportions  as  it 
was  to  be  momentous  in  its  consequences.  Mr.  Parkman 
describes  the  boundless  domain  which  France  had  con- 
quered for  civilization:  "an  untamed  continent;  vast 
wastes,  silent  in  primeval  sleep;  river,  lake,  and  glimmer- 
ing pool;  wilderness  oceans  mingling  with  the  sky."  To 
occupy  this  splendid  domain,  to  establish  throughout  its 
vast  extent  the  institutions  of  liberty,  was  the  splendid 
achievement  of  less  than  a  century. 

We  know  what  manner  of  men  led  in  the  great  move- 
ment which  lies  between  the  Treaty  of  Paris  and  the  climax 
of  the  Civil  War.  We  are  beginning  to  suspect  that  these 
leaders  were  but  types  a  little  larger  grown  of  the  men 
whom  they  led;  that  the  hardy  pioneers  who  composed 

364 


"THE  CONFUSED  WEST" 

the  army  of  occupation  are  worthy  a  nearer  acquaintance ; 
that  the  sons  of  the  plain  men  who  stood  behind  the  great 
prophet  of  union  may  glory  in  an  ancestry  cast  in  heroic 
mould.  It  remains  for  the  literature  of  the  West  that  is  to 
be  to  make  these  plain  men  known  as  those  who  led  them 
are  already  known,  to  exhibit  their  deeds  on  its  imperish- 
able pages,  to  make  their  fame  as  lasting  as  the  civilization 
which  they  founded. 

We  begin  to  see  with  Parkman  and  Fiske  that  the 
Mediterranean  has  occupied  too  exclusively  the  centre  of 
our  field  of  vision;  "that  in  the  New  World  events  there  is 
a  rare  and  potent  fascination";  that  they  possess  "the 
charm  of  a  historic  past  as  full  of  romance  as  any  chapter 
whatever"  in  human  annals;  that  "the  struggle  between 
France  and  England  for  the  soil  of  North  America  was 
one  of  the  great  critical  moments  in  the  career  of  man- 
kind"; that  in  this  mighty  struggle  between  free  industrial 
England  and  despotic  militant  France  was  determined 
the  destiny  of  a  continent.  The  St.  Lawrence  and  the 
Mississippi  Rivers,  the  lakes  and  plains  of  the  West,  have 
seen  great  causes  lost  and  won.  The  banks  of  the  Detroit 
and  the  Illinois,  of  Mackinac  and  St.  Mary's,  are  classic 
ground.  Along  and  over  the  noble  waterways  of  the  West 
the  pioneers  of  New  France  passed  and  repassed  for  nearly 
two  centuries.  Explorers  and  soldiers,  priests  and  traders, 
with  tireless  zeal  prosecuted  the  designs  of  France  in  the 
New  World.  Voyages  of  thousands  of  miles  by  lake  and 
river  in  frail  canoes  were  common  experiences  of  their 
adventurous  lives. 

The  faults  of  the  French  scheme  of  civilization,  of  the 

365 


ESSAYS  AND  ADDRESSES 

institutions  which  they  sought  to  plant  in  the  virgin  soil 
of  the  New  World,  were  due  to  no  lack  of  lofty  qualities  in 
individual  Frenchmen.  The  Old  World  sent  to  the  New,  no 
finer  types  of  men  than  some  of  those  who  bore  the  bamier 
of  France  to  the  uttermost  confines  of  the  St.  Lawrence 
and  Mississippi  valleys.  The  world  has  never  witnessed 
greater  sacrifices  for  country  and  for  faith  than  were 
cheerfully  made  in  the  New  World  by  successive  genera- 
tions of  French  explorers  and  missionaries.  Speaking  of 
the  vast  domain  which  these  heroic  men  conquered  for 
civilization  and  of  their  gigantic  ambition  to  grasp  a  con- 
tinent, Parkman  says:  "Plumed  helmets  gleamed  in  the 
shade  of  its  forests,  priestly  vestments  in  its  dens  and  fast- 
nesses of  ancient  barbarism.  Men  steeped  in  antique  learn- 
ing, pale  with  the  close  breath  of  the  cloister,  here  spent 
the  noon  and  evening  of  their  lives,  ruled  savage  hordes 
with  a  mild,  parental  sway,  and  stood  serene  before  the 
direst  shapes  of  death.  Men  of  courtly  nurture,  heirs  to 
the  polish  of  a  far-reaching  ancestry,  here,  with  their 
dauntless  hardihood,  put  to  shame  the  boldest  sons  of  toil." 
Though  Mr.  Parkman  has  told  in  noble  and  lasting 
form  the  splendid  story  of  French  discovery  and  occupa- 
tion, and  of  the  critical  struggle  between  liberty  and  ab- 
solutism for  the  possession  of  the  New  World,  the  great 
events  which  he  chronicles,  the  noble  men  who  throng  his 
pages,  will  long  furnish  themes  for  historian  and  biog- 
rapher, romancer  and  poet.  Detroit,  Sault  Ste.  Marie, 
Michilimacinac,  St.  Joseph,  Checagou,  Fort  St.  Louis, 
and  Kaskaskia  are  names  of  growing  historic  interest.  The 
banks  of  the  lake  straits,  of  the  Illinois  and  the  Mississippi 

366 


"THE  CONFUSED  WEST" 

Rivers,  will  ever  "bloom  for  us  with  flowers  of  romance." 
The  fame  of  heroic  explorers,  devout  priests,  and  tireless 
traders  will  long  be  crescent  among  those  who  dwell  be- 
neath Western  skies.  Samuel  de  Champlain,  Jean  Nicollet, 
Louis  Joliet,  Jacques  Marquette,  Gabriel  Lalemant,  Jean 
de  Brebeuf,  Henri  de  Tonty,  and,  last  and  greatest  of 
all,  "that  man  against  whom  fate  sickened  of  contending, 
the  mighty  and  masterful  La  Salle," — these  hold  high 
places  among  enduring  names  in  the  history  of  the  West. 
They  and  such  as  they  laid  the  foundations  of  our  Western 
life.  Their  activities,  in  the  main  obscure  at  the  time, 
were  of  great  and  lasting  influence.  It  was  their  rare 
fortune  to  begin  a  new  civilization,  to  be  so  placed  that 
their  every  act  was  of  vital  import  to  the  future  of  the 
race.  Upon  their  toils  and  their  conflicts,  their  defeats 
and  their  victories,  hung  issues  of  momentous  consequence 
to  generations  yet  unborn.  They  sought  to  master  a  con- 
tinent for  feudalism,  for  monarchy,  for  Rome;  they  won 
it  for  democracy,  for  the  freest  of  institutions.  They  con- 
quered a  barbarous  wilderness,  intending  to  create  a  new 
France;  they  made  preparation  for  a  better  England. 
They  wrought  for  absolutism ;  they  achieved  for  liberty. 

The  story  of  French  dominion  in  the  valleys  of  the  St. 
Lawrence  and  the  Mississippi  reveals  but  the  beginning  of 
Western  civilization.  Even  greater  events  were  to  follow 
in  quick  succession.  The  defeat  of  the  French  meant 
early  ruin  to  the  natives  of  the  soil.  While  the  representa- 
tives of  French  absolutism  regretfully  lingered  about  the 
Great  Lakes  and  along  the  noble  waterways  of  the  West  to 
mourn  a  lost  empire,  their  savage  allies  united  under  the 

367 


ESSAYS  AND  ADDRESSES 

greatest  of  red  men  to  drive  the  conquerors  beyond  the 
Alleghanies  from  whence  they  came.  The  mighty  Pontiac 
with  consummate  skill  marshalled  his  fierce  warriors  from 
many  scattered  tribes.  Then,  with  marvelous  cunning,  the 
wily  savage  by  concerted  action  surprised  and  massacred 
the  garrisons  of  many  of  the  Western  posts.  Then  followed 
that  most  extraordinary  of  Indian  military  exploits,  the 
siege  of  Detroit;  the  failure  of  expected  French  support; 
the  retirement  of  the  French  to  the  Spanish  territory  west 
of  the  Mississippi,  and  the  settlement  of  St.  Louis;  the 
collapse  of  the  vast  conspiracy;  Pontiac's  submission  to 
Sir  William  Johnson,  followed  by  a  few  years  of  fitful 
peace;  the  assassination  of  the  great  chieftain  at  Cahokia 
by  an  Indian  of  the  Illinois,  bribed  to  the  deed  with  a 
barrel  of  rum;  and  the  gathering  of  the  tribes  from  far 
and  near  to  revenge  his  death,  resulting  in  the  extermina- 
tion of  the  Illinois.  Parkman  tells  us  "that  over  the 
grave  of  Pontiac  more  blood  was  poured  out  in  atonement 
than  flowed  from  the  veins  of  the  slaughtered  heroes  on  the 
corpse  of  Patroclus."  Such  in  merest  outline  is  a  story  of 
rare  and  tragic  interest,  one  that  may  yet  become  the 
theme  of  an  epic  poem. 

The  echoes  of  French  authority  had  but  just  died 
away  along  the  great  waterways  and  through  the  untamed 
forests  of  New  France,  the  representatives  of  the  con- 
queror had  scarcely  become  accustomed  to  scenes  long 
dear  to  Champlain  and  La  Salle  and  Frontenac,  when  the 
American  colonies  rose  in  revolt,  demanding  their  inde- 
pendence. The  victory  of  England  over  France  in  their 
long  struggle  for  supremacy  in  the  New  World  had  pre- 

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'THE   CONFUSED  WEST" 

pared  the  way  for  this  revolt  and  left  France  willing  to 
lend  her  aid.  It  had  likewise  given  to  England,  Quebec, 
and  Montreal,  Canada  and  the  lower  St.  Lawrence,  in 
lieu  of  Boston  and  New  York,  the  Atlantic  seaboard  and 
the  Ohio  valley,  so  soon  to  be  forever  lost. 

The  great  events  of  the  Revolution  in  the  East  were  of 
such  momentous  consequences  that  until  recently  the  im- 
portance of  collateral  events  in  the  West  was  largely  over- 
looked. The  expedition  led  by  George  Rogers  Clark,  the 
capture  of  Cahokia  and  Kaskaskia,  the  winter  marches 
across  Illinois  resulting  in  the  capture  of  Vincennes  and 
St.  Joseph,  won  for  the  confederated  colonies  the  North- 
west Territory  and  made  it  possible  for  Franklin  and  Jay 
and  Adams,  in  fixing  the  terms  of  peace,  to  draw  the 
northern  and  western  boundaries  of  the  new  nation 
through  the  Great  Lakes,  along  the  Grand  Portage  from 
Lake  Superior  to  the  sources  of  the  Mississippi,  and  thence 
through  the  centre  of  that  great  river. 

The  Treaty  of  Paris  marks  the  beginning  of  the  great 
movement  for  the  settlement  of  the  West.  This  was  the 
opportunity  of  the  pioneers.  How  well  they  improved  it 
is  subject  matter  for  a  great  chapter  in  the  story  of  our 
national  development.  Within  two-thirds  of  a  century 
they  occupied  the  vast  region  still  called  the  West,  plant- 
ing everywhere  in  its  virgin  soil  the  seeds  of  civilization. 
The  early  years  of  this  rapid  movement  were  marked  by 
destructive  Indian  outbreaks  in  many  places,  finally  re- 
sulting in  General  Wayne's  treaty  of  1795  with  all  the 
tribes  of  the  Northwest  Territory.  By  this  great  peace 
pact  the  United  States  recognized  the  title  of  the  Indians  to 

369 


ESSAYS  AND  ADDRESSES 

nearly  all  the  land  of  the  Northwest  Territory;  also  their 
right  to  share  jurisdiction  with  the  United  States  over 
the  territory,  including  the  Great  Lakes  and  other  water- 
ways. It  is  good  to  recall  that  by  subsequent  treaties  the 
Indian  title  to  the  lands  of  the  territory  were  gradually 
extinguished  by  purchase.  Whatever  was  done  elsewhere, 
here  the  rights  of  the  Indians  were  in  a  measure  respected. 

The  ordinance  of  1787  had  in  the  meantime  been  en- 
acted by  the  Congress  of  the  Confederation.  By  this 
great  charter  of  government  for  the  Northwest  Territory 
provision  was  made  for  freedom  of  religion,  inviolability 
of  contracts,  fair  and  just  treatment  of  the  Indians,  for 
the  continuance  in  the  union  of  the  States  to  be  created, 
for  the  encouragement  of  schools,  and  for  the  free  navi- 
gation of  the  waters  and  portages  of  the  territory.  Above 
all  it  provided  for  the  freedom  of  all  persons  within  the 
territory  excepting  only  fugitive  slaves.  Thus  was  the 
splendid  domain  of  the  Northwest  Territory  forever  dedi- 
cated to  freedom  and  education. 

The  great  events  of  the  last  century  in  the  development 
of  the  West  are  too  well  known  to  require  recital  here. 
They  include  the  occupation  of  the  Mississippi  valley,  the 
large  share  of  the  West  in  the  Civil  War,  and  the  rapid 
growth  of  a  great  democratic  society.  Many  of  these 
events  are  too  near  at  hand  to  be  seen  in  their  true  per- 
spective. It  must  suffice  here  to  say  that  they  will  ever 
occupy  large  space  in  the  record  of  American  achivement. 

Such  is  the  rich  store  of  materials  for  a  literature  of 
the  West.  From  this  storehouse  will  come  themes  for 
every  form  of  literary  art.    Here  the  deep  mystery  of  pre- 

370 


"THE  CONFUSED  WEST  ' 

historic  life  meets  modern  men  face  to  face.  Upon  a  wide 
arena  appear  scenes  strange  and  varied.  Across  it  pass 
and  repass  vividly  contrasted  characters.  Shadowy  forms 
glide  here  and  there  on  romantic  errands.  Heroic  figures, 
representatives  of  France  at  the  height  of  Bourbon  power, 
long  dominate  the  scene.  Devoted  priests  bear  incredible 
hardships  that  they  may  touch  with  the  mystic  drop  the 
dying  babes  of  savage  mothers.  Fearless  explorers 
watched  by  jealous  natives  traverse  in  swift  canoes  the 
clear  waters  of  mighty  rivers  and  vast  inland  seas.  Daunt- 
less soldiers  and  wily  savages  engage  in  deadly  combat. 
The  forces  of  liberty  and  absolutism  in  alliance  with  bar- 
barous hosts  contend  for  a  continent.  Hardy  pioneers 
plant  in  the  garden  of  the  New  World  the  seeds  of  civiliza- 
tion. Upon  a  stage  vast  and  varied,  amid  scenes  old  and 
yet  new,  men  chosen  from  many  lands  have  met  the  Eng- 
lish language,  the  common  law,  and  the  Constitution  of 
the  United  States.  Fused  by  these  mighty  forces  into  a 
homogeneous  people  they  here  hopefully  face  the  great 
problems  of  modern  life. 

Why  did  a  literary  field  thus  wide  and  fertile  remain  so 
long  untilled  ?  Why  may  a  literary  critic  looking  over  this 
great  field  from  the  ramparts  of  Harvard  University  still 
with  some  appearance  of  truth  pronounce  it  "confused"? 
The  answer  is  not  far  to  seek.  The  men  of  the  West  have 
exhausted  their  energies  in  performing  active  tasks.  They 
"have  had  to  act  their  Iliad,  and  they  have  not  yet  had 
time  to  sing  it."  While  Hawthorne,  Emerson,  and  Lowell 
were  creating  the  literature  of  New  England,  these  men 
were  laying  broad  the  foundations  of  civilization  through- 

371 


ESSAYS  AND  ADDRESSES 

out  the  West.  Their  pursuits  were  active  rather  than 
intellectual;  their  minds  were  practical  rather  than  crea- 
tive. Then,  too,  until  our  time  many  if  not  most  of  the 
trained  men  of  the  West  were  born  and  bred  elsewhere. 
Even  those  of  native  birth  were  mainly  educated  in  the 
East.  While  men  so  transplanted  or  trained  may  write, 
they  are  not  likely  to  produce  a  literature  of  the  soil.  Had 
Hawthorne  and  Lowell  been  born  and  bred  in  England 
and  then  transplanted  as  mature  men,  they  might  have 
made  equally  great  contributions  to  literature.  They 
could  not  have  written  "The  Scarlet  Letter"  and  "The 
Biglow  Papers."  Had  Mark  Twain  first  seen  the 
Mississippi  River  as  a  mature  man,  "Huckleberry  Finn" 
would  have  remained  unwritten. 

The  time  has  but  just  arrived  in  which  the  greater  num- 
ber of  the  highly  trained  men  of  the  West  are  of  native 
birth.  Its  institutions  of  higher  learning,  its  libraries,  and 
other  facilities  have  but  recently  entered  upon  a  real  com- 
petition with  those  of  the  East.  If  the  trained  men  of 
the  West  have  been  mainly  transplanted,  if  its  intellectual 
life  has  been  barren  and  unproductive  from  the  standpoint 
of  art,  there  is  no  reason  why  these  conditions  should 
continue.  Rich  in  material  for  culture,  with  a  population 
produced  by  the  fusing  of  the  best  elements  of  many  lands, 
with  large  facilities  for  training  men,  the  West  is  now 
for  the  first  time  producing  in  large  numbers  those  able 
worthily  to  interpret  her  inner  life  and  purpose.  If  that 
life  be  not  hopelessly  shallow  and  frivolous,  if  that  purpose 
be  not  wholly  material  and  sordid,  if  that  life  and  purpose 
be  really  great  and  earnest,  they  must  in  the  fulness  of 

372 


"THE  CONFUSED  WEST" 

time  find  expression  in  words  that  shall  live  because  of 
their  lasting  value  to  the  race. 

The  signs  are  not  wanting  that  the  "supreme  Beauty" 
of  Emerson's  vision  is  about  "to  speak  in  the  West  also." 
Already  here  and  there  the  children  of  the  West  are  giving 
worthy  expression  to  the  varied  phases  of  a  life  which  is 
not  in  fact  so  confused  as  it  may  seem  from  afar.  A  school, 
at  least  a  group,  of  writers  is  growing  up  among  us.  The 
richness  of  the  literary  materials  which  are  ready  to  their 
hand,  is  becoming  clear  to  a  great  constituency.  All  the 
conditions  point  to  a  period  of  literary  activitj^  in  the 
West  that  may  prove  to  be  as  important  as  that  which 
a  generation  ago  gave  to  us  the  literature  of  New  England. 

It  has  required  time  here  to  fuse  the  diverse  elements  of 
many  lands  into  a  homogeneous  society.  This  great  mir- 
acle has  now  been  wrought.  The  men  of  the  West  have 
learned  to  think  and  to  act  in  the  terms  of  a  common  lan- 
guage. That  language  is  at  once  the  language  of  liberty 
and  of  opportunity.  It  is  here  the  common  speech  of  mil- 
lions of  men  who  have  already  achieved  much,  to  whom 
achievement  is  easy,  who  hopefully  face  a  future  of  splen- 
did certainties  and  untold  possibilities.  If,  as  Mr.  Wendell 
defines  it,  "literature  is  the  lasting  expression  in  words 
of  the  meaning  of  life,"  surely  the  life  of  the  West  is  great 
enough,  both  in  its  achievements  and  in  its  hopes,  to  re- 
quire a  great  literature  to  give  it  adequate  and  lasting 
expression. 

There  are  of  course  difficulties  to  be  overcome.  Some 
of  these  are  new  and  peculiar  to  our  time,  if  not  to  the 
West.     We  have  lately  achieved  what  may  be  called  a 

373 


ESSAYS  AND  ADDRESSES 

democratization  of  many  things  formerly  reserved  for  the 
few.  This,  for  at  least  the  moment,  threatens  to  over- 
whelm all  our  standards  of  art.  What  we  call  "yellow 
journalism"  is  but  evidence  that  the  newspaper,  once  the 
luxury  of  the  few,  has  become  the  necessity  of  all.  There 
are  not  fewer  serious  publications  for  those  capable  of  ap- 
preciating them.  There  are  more  sensational  publications 
for  the  many  who  until  yesterday  had  none;  and  who  are 
not  yet  trained  to  appreciate  only  that  which  is  good.  The 
consumers  of  literature  have  enormously  multiplied. 
The  average  taste  of  readers  is  of  course  lower  than  when 
only  the  cultured  read.  This  reacts  on  those  who  write. 
Form  for  the  time  being  is  less  essential  to  success.  The 
prize  is  to  him  who  ministers  to  each  passing  craze.  Wide 
popularity  and  large  returns  come  to  writers  who  have 
never  learned  that  "works  done  least  rapidly  are  most 
cherished."  Thus  a  democratic  literature  runs  the  risk  of 
becoming  lawless,  irreverent,  transient.  From  this  fate 
those  who  wrote  were  for  a  time  kept  by  a  tradition  formed 
when  those  who  read  were  only  the  cultured  few.  Now 
that  the  crowd  reads,  it  must  acquire  taste  if  those  who 
write  are  to  observe  its  requirements.  If  our  literature  is 
to  be  other  than  a  mere  superficial  and  fleeting  expression 
in  ill-chosen  words  of  the  meaning  of  the  life  we  live,  the 
crowd  must  acquire  an  appreciation  of  form,  of  serious  lit- 
erary performance. 

The  West  is  of  all  great  societies  the  most  democratic 
that  the  world  has  seen.  Here  the  aristocratic  spirit  has 
never  held  sway.  Those  who  occupied  this  new  land  and 
reenacted  here  the  Bill  of  Rights,  substituted  the  ideal 

374 


"THE  CONFUSED  WEST" 

of  equality  for  that  of  aristocracy.  If  democracy  is  to 
be  charged  with  the  defects  of  a  society  thus  created,  it  is 
to  be  credited  with  its  virtues.  There  must  be  some  energy 
for  good  in  a  society  which,  at  the  close  of  its  pioneer 
period  could  give  to  the  world  an  Abraham  Lincoln  as 
its  typical  man.  There  must  be  something  above  the  com- 
monplace in  a  society  which,  at  the  close  of  its  first  cen- 
tury could  express  its  finer  instincts  in  the  Columbian 
Exposition. 

It  is  the  glory  of  this  Western  democracy  that  even 
Abraham  Lincoln  did  not  stand  alone.  He  claimed  no  dis- 
tinction of  birth.  He  scorned  the  absurd  pretence  of 
divine  right.  He  was  content  to  represent  and  serve  a 
free  people. 

His  was  no  lonely  mountain-peak  of  mind. 

Thrusting  to  thin  air  o'er  our  cloudy  bars, 

A  sea-mark  now,  now  lost  in  vapors  blind ; 

Broad  prairie  rather,  genial,  level-lined. 

Fruitful  and  friendly  for  all  human  kind, 

Yet  also  nigh  to  heaven  and  loved  of  loftiest  stars. 

Nothing  of  Europe  here." 

The  men  of  the  West,  who  at  the  call  of  this  First 
American  went  forth,  were  of  the  same  type.  He  and 
they,  with  their  brethren  of  the  East,  went  even  into  death 
to  preserve  the  Union,  to  destroy  privilege,  to  make 
equality  of  rights — the  ideal  of  the  Declaration — the 
achievement  of  American  democracy.  A  great  society, 
under  no  authority  save  the  united  will  of  those  who  com- 
posed it,  rose  to  a  sublime  opportunity.  The  West  stood 
forth  in  its  true  character.  It  was  seen  to  be  other  than 
a  mere  collection  of  some  millions  of  commonplace  human 

375 


ESSAYS  AND  ADDRESSES 

beings  without  inspiration  or  leadership.  It  appeared  a 
mighty  people  dominated  by  moral  purposes,  led  by  the 
man  who  embodied  its  spirit. 

He  who  has  not  yet  fathomed  the  deep  injustice  of 
special  privilege,  the  supreme  selfishness  of  aristocracy,  the 
brazen  pretence  of  divine  right,  is  not  qualified  to  write 
the  literature  of  a  free  people.  They  who  are  to  inter- 
pret the  West  must  think  and  write  in  the  terms  of 
democracy.  They  must  live  the  life,  share  the  spirit,  ex- 
press the  purpose  of  a  democratic  society.  They  must 
have  insight  to  find  in  the  crude  life  of  the  pioneer  the 
charm  of  splendid  possibilities,  in  the  rough  experiences  of 
the  frontier  the  preparation  for  public  order,  in  the  phil- 
istinism  of  the  crowd  the  beginnings  of  general  culture. 
Men  thus  equipped  to  create  a  literature  of  the  West  face 
an  alluring  task. 

It  is  not  enough  that  the  soil  on  which  we  live  has  wit- 
nessed great  deeds;  that  explorer  and  priest  and  trader 
have  glorified  it  with  sublime  courage;  that  soldier  and 
pioneer  and  statesman  have  made  it  the  base  of  a  mighty 
republic.  It  is  not  enough  that  it  has  become  the  home 
of  the  most  free  of  great  peoples,  of  vast  industries,  of  a 
mighty  commerce,  of  noble  seats  of  learning,  of  worthy 
temples  of  religion;  that  it  has  entered  upon  a  splendid 
inheritance  of  science,  of  literature,  of  art.  It  is  not  enough 
that  its  achievements  have  made  it  great  in  the  eyes  of  the 
world.  Its  ordinary  citizens  must  realize  and  feel  some- 
thing of  the  value  of  what  has  made  it  great.  From  the 
soil  must  come  the  influences  which  shall  enrich  and  elevate 
the  common  life. 

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